FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 17-10230

v.

D.C. No.
3:15-cr-00565-WHO-1

BRYAN GILBERT HENDERSON,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted August 14, 2018
San Francisco, California
Filed October 23, 2018
Before: Diarmuid F. O’Scannlain and Carlos T. Bea,
Circuit Judges, and Richard G. Stearns, ∗ District Judge.
Opinion by Judge O’Scannlain

∗
The Honorable Richard G. Stearns, United States District Judge
for the District of Massachusetts, sitting by designation.

 2

UNITED STATES V. HENDERSON
SUMMARY **

Criminal Law
The panel affirmed the district court’s denial of a motion
to suppress evidence, including evidence seized in
California, pursuant to a Network Investigative Technique
(“NIT”) warrant issued by a magistrate judge in the Eastern
District of Virginia, in a case in which the defendant entered
a conditional guilty plea to receipt of child pornography.
The panel held that the NIT warrant violated Fed. R.
Crim. P. 41(b) by authorizing a search outside of the issuing
magistrate judge’s territorial authority. The government did
not dispute that the NIT warrant exceeded the general
territorial scope identified in Fed. R. Crim. P. 41(b)(1) by
authorizing a search of an “activating computer” in
California, and the panel rejected the government’s
contention that the NIT mechanism is a “tracking device” for
which out-of-district warrants are authorized by Fed. R.
Crim. P. 41(b)(4).
Considering whether the violation of Rule 41(b) compels
suppression, the panel agreed with the defendant that Rule
41(b) is not merely a technical venue rule, but rather is
essential to the magistrate judge’s jurisdiction to act in this
case. The panel held that a warrant purportedly authorizing
a search beyond the jurisdiction of the issuing magistrate
judge is void under the Fourth Amendment, and that the Rule
41 violation was a fundamental, constitutional error.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

 UNITED STATES V. HENDERSON

3

The panel concluded that the good faith exception to the
exclusionary rule applied to bar suppression of the evidence
obtained against the defendant pursuant to the NIT warrant.
The panel rejected the defendant’s contention that the good
faith exception does not apply to warrants that are void ab
initio. The panel rejected the defendant’s contention that the
government acted in bad faith in seeking the warrant, noting
that at the time the government applied for the NIT warrant,
the legality of the investigative technique was unclear. The
panel wrote that there is no evidence that the officers
executing the NIT warrant acted in bad faith; and that
suppression of the evidence against the defendant is unlikely
to deter future violations of this specific kind because the
conduct at issue is, after a December 2016 amendment,
authorized by Fed. R. Crim. P. 41(b)(6).

COUNSEL
Hanni M. Fakhoury (argued), Assistant Federal Public
Defender; Steven G. Kalar, Federal Public Defender; Office
of the Federal Public Defender, Oakland, California; for
Defendant-Appellant.
John P. Taddei (argued), Appellate Section; Matthew S.
Miner, Deputy Assistant Attorney General; John P. Cronan,
Acting Assistant Attorney General; Criminal Division,
United States Department of Justice, Washington, D.C.; J.
Douglas Wilson, Assistant United States Attorney; Alex G.
Tse, United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellee.
Mark Rumold and Andrew Crocker, Electronic Frontier
Foundation, San Francisco, California, for Amicus Curiae
Electronic Frontier Foundation.

 4

UNITED STATES V. HENDERSON

Jennifer S. Granick, American Civil Liberties Union
Foundation, San Francisco, California; Brett Max Kaufman
and Vera Eidelman, American Civil Liberties Union
Foundation, New York, New York; Linda Lye, American
Civil Liberties Union Foundation of Northern California,
San Francisco, California; Mateo Caballero, ACLU of
Hawai‘i Foundation, Honolulu, Hawai‘i; Kathleen E. Brody,
ACLU Foundation of Arizona, Phoenix, Arizona; Mathew
dos Santos, ACLU Foundation of Oregon Inc., Portland,
Oregon; for Amici Curiae American Civil Liberties Union,
ACLU of Northern California, ACLU of Arizona, ACLU of
Hawai‘i, and ACLU of Oregon.

OPINION
O’SCANNLAIN, Circuit Judge:
In this child pornography case, we must decide whether
evidence that was obtained pursuant to a warrant that
authorized a search of computers located outside the issuing
magistrate judge’s district must be suppressed.
I
A
In 2014, the Federal Bureau of Investigation (“FBI”)
began
investigating
the
internet
website
upf45jv3bziuctml.onion, “Playpen,” which was used to send
and to receive child pornography. Playpen operated on an
anonymous network known as “The Onion Router” or
“Tor”. To use Tor, the user must download and install the
network software on his computer. Tor then allows the user

 UNITED STATES V. HENDERSON

5

to visit any website without revealing the IP address, 1
geographic location, or other identifying information of the
user’s computer by using a network of relay computers.
Tor also allows users to access “hidden services,” which
are websites that are accessible only through the Tor network
and are not accessible publicly. A hidden-service website
hosted on the Tor network does not reveal its location; a Tor
user can access the hidden-service website without knowing
the location of its server and without its knowing the user’s
location.
Playpen operated as a hidden-service website and
required users to log in with a username and password to
access its discussion forums, private messaging services, and
images of child pornography. After determining that
Playpen was hosted on servers located in Lenoir, North
Carolina, the FBI obtained and executed a valid search
warrant in the Western District of North Carolina in January
2015, and seized the Playpen servers. The FBI removed the
servers to its facility in Newington, Virginia. Because Tor
conceals its users’ locations and IP addresses, additional
investigation was required to identify Playpen users. The
FBI then operated the Playpen website from a governmentcontrolled server in Newington in the Eastern District of
Virginia, from which it obtained a valid court order
authorizing it to intercept electronic communications sent
and received by the site’s administrators and users.
The FBI later obtained a warrant from a United States
magistrate judge in the Eastern District of Virginia on
1

An IP address is a “unique numerical address” assigned to every
computer and can serve as its identifying characteristic. United States v.
Forrester, 512 F.3d 500, 510 n.5 (9th Cir. 2008) (citation omitted).

 6

UNITED STATES V. HENDERSON

February 20, 2015, authorizing searches for thirty days using
what is known as a Network Investigative Technique
(“NIT”). Specifically, such “NIT warrant” authorized the
search of all “activating” computers—that is, those of any
website visitor, wherever located, who logged into Playpen
with a username and password. 2 The NIT technology is
computer code consisting of a set of instructions. When a
person logged into the Playpen site, the NIT caused
instructions to be sent to his computer, which in turn caused
the computer to respond to the government-controlled server
with seven pieces of identifying information, including its IP
address. The NIT mechanism allowed the FBI, while
controlling the website from within the Eastern District of
Virginia, to discover identifying information about
activating computers, even though Playpen operated on the
Tor network.
On March 1, 2015, a person logged into Playpen under
the username “askjeff.” The NIT instructions were sent to
askjeff’s computer, which revealed its IP address through its
response to the government-controlled server. The computer
response also revealed that askjeff had been actively logged
into Playpen for more than thirty-two hours since September
2014 and had accessed child pornography. The FBI traced
the IP address to an internet service provider (“ISP”),
Comcast Corporation, which was served with an
2
The warrant stated: “This warrant authorizes the use of a network
investigative technique (“NIT”) to be deployed on the computer server
. . . operating the Tor network child pornography website referred to
herein as the TARGET WEBSITE, . . . which will be located at a
government facility in the Eastern District of Virginia.” The warrant
further provided that, through the NIT, the government may obtain
information, including IP address, from all “activating computers”—
“those of any user or administrator who logs into the TARGET
WEBSITE by entering a username and password.”

 UNITED STATES V. HENDERSON

7

administrative subpoena requesting information about the
user assigned to the IP address. The IP address turned out to
be associated with a computer at the San Mateo, California,
home of Bryan Henderson’s grandmother, with whom
Henderson lived. A local federal magistrate judge in the
Northern District of California issued a warrant to search the
home, where the FBI then discovered thousands of images
and hundreds of videos depicting child pornography on
Henderson’s computer and hard drives.
B
Henderson was indicted in the Northern District of
California on charges of receipt and possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(2),
(a)(4)(B), and (b)(2).
Henderson moved to suppress all evidence, including the
evidence seized at his grandmother’s home in California,
obtained pursuant to the “NIT warrant” issued by the Eastern
District of Virginia. 3 The district court denied Henderson’s
motion to suppress.
Henderson then pled guilty to receipt of child
pornography, but expressly reserved the right to appeal the
district court’s denial of his motion to suppress. Henderson

3

Henderson challenges only the warrant issued by the Eastern
District of Virginia on February 20, 2015, authorizing the use of the NIT.
He does not argue that the warrant issued in the Western District of North
Carolina, which resulted in the seizure of the Playpen servers, or the
warrant issued in the Northern District of California, which led to the
search of Henderson’s home and computer, is invalid. Nor does he
challenge the validity of the court order authorizing the FBI to intercept
electronic communications through the Playpen website.

 8

UNITED STATES V. HENDERSON

was sentenced to sixty months in prison and a ten-year term
of supervised release.
Henderson timely appealed, challenging the denial of his
motion to suppress.
II
Henderson argues that the motion to suppress should
have been granted because the NIT warrant was issued in
violation of Federal Rule of Criminal Procedure 41(b),
which authorizes magistrate judges to issue warrants subject
to certain requirements. To prevail on his argument,
Henderson must show both that the NIT warrant did violate
Rule 41(b) and that suppression is the appropriate remedy
for such violation.
A
Henderson urges that no provision within Rule 41(b)
authorizes a magistrate judge to issue the NIT warrant to
search computers located outside of her district.
In general, Rule 41(b) permits “a magistrate judge with
authority in the district . . . to issue a warrant to search for
and seize a person or property located within the district.”
Fed. R. Crim. P. 41(b)(1) (emphasis added). Judge Orrick
concluded that the NIT warrant indeed violated Rule 41(b),
because it was obtained in the Eastern District of Virginia,
yet it authorized a search of computers located outside of that
district. 4 The government does not dispute that the NIT
4

The government concedes that a “search” occurred when the NIT
was deployed to users’ computers and returned their identifying
information. As two of our sister circuits have before us, we agree. See
United States v. Werdene, 883 F.3d 204, 213 n.7 (3d Cir. 2018) (“The

 UNITED STATES V. HENDERSON

9

warrant exceeded the general territorial scope identified in
Rule 41(b)(1) by authorizing a search of an “activating
computer” in California.
However, the government counters that the NIT warrant
was nonetheless authorized under Rule 41(b)(4)’s specific
provision for tracking devices, which permits “a magistrate
judge with authority in the district . . . to issue a warrant to
install within the district a tracking device . . . to track the
movement of a person or property located within the district,
outside the district, or both.” Fed. R. Crim. P. 41(b)(4). Rule
41 defines a “tracking device” as “an electronic or
mechanical device which permits the tracking of the
movement of a person or object.” Fed. R. Crim. P.
41(a)(2)(E); 18 U.S.C. § 3117(b).
The government contends that Henderson’s computer
made a “virtual trip” to the government server in the Eastern
District of Virginia when he logged into the Playpen website.
According to the government, his computer then “brought”
the NIT instructions, along with the usual Playpen website
content, back with it from the government server to his
computer’s physical location in California. The NIT
instructions then caused identifying location information to
be transmitted back to the government, just like a beeper or
other tracking device would.
We are not persuaded by the government’s assertions.
The NIT instructions did not actually “track the movement
District Court wrongly concluded that . . . Werdene had no reasonable
expectation of privacy in his IP address.”); United States v. Horton,
863 F.3d 1041, 1047 (8th Cir. 2017) (noting that a defendant “has a
reasonable expectation of privacy in the contents of his personal
computer” and concluding that “the execution of the NIT in this case
required a warrant”).

 10

UNITED STATES V. HENDERSON

of a person or property,” as required by the tracking-device
provision. Fed. R. Crim. P. 41(b)(4). Rather, the NIT
mechanism was simply a set of computer instructions that
forced activating computers, regardless of their location, to
send certain information to the government-controlled
server in Virginia. Users’ computers did not physically
travel to Virginia, and the information they relayed did not
reveal the physical location of any person or property, unlike
a beeper attached to a vehicle. The “seized information
(mainly the IP address) assisted the FBI in identifying a user,
[but] it provided no information as to the computer’s or
user’s precise and contemporary physical location.” United
States v. Werdene, 883 F.3d 204, 212 (3d Cir. 2018). Indeed,
the only two federal courts of appeals to consider the
question have rejected the government’s very argument. As
the Eighth Circuit has recognized, “the plain language of
Rule 41 and the statutory definition of ‘tracking device’ do
not . . . support so broad a reading as to encompass the
mechanism of the NIT used in this case.” United States v.
Horton, 863 F.3d 1041, 1048 (8th Cir. 2017) (internal
quotation marks omitted); accord. Werdene, 883 F.3d at
211–12.
Interestingly, Rule 41(b) was amended on December 1,
2016—after the issuance of the NIT warrant here—to
authorize magistrate judges to issue warrants to search
computers located outside their district if “the district where
the media or information is located has been concealed
through technological means.” Fed. R. Crim. P. 41(b)(6).
As our sister circuits have recognized, such amendment
plainly seems to “authorize[] warrants such as the NIT
warrant here.” Werdene, 883 F.3d at 206 n.2; see also
Horton, 863 F.3d at 1047 n.2 (noting that Rule “41(b)(6) was
added to provide an additional exception to the magistrate’s
jurisdictional limitation by allowing warrants for programs

 UNITED STATES V. HENDERSON

11

like the NIT”). The fact that Rule 41 was amended to
authorize specifically these sorts of warrants further supports
the notion that Rule 41(b) did not previously do so.
In sum, the NIT mechanism is not a “tracking device”
within the meaning of Federal Rule of Criminal Procedure
41(b)(4), and the government does not argue that any other
provision in Rule 41(b) applies. We are satisfied that the
NIT warrant violated Rule 41(b) by authorizing a search
outside of the issuing magistrate judge’s territorial authority.
B
But does a warrant issued in violation of Rule 41(b)
compel suppression of evidence? Not necessarily.
Only certain Rule 41 violations justify suppression. The
suppression of evidence is “a judicially created remedy
designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal
constitutional right of the party aggrieved.” United States v.
McLamb, 880 F.3d 685, 690 (4th Cir. 2018) (quoting United
States v. Leon, 468 U.S. 897, 906 (1984)). To determine
whether suppression is justified, we must first decide
whether the Rule 41(b) violation is a “fundamental error[]”
or a “mere technical error[].” United States v. NegreteGonzales, 966 F.2d 1277, 1283 (9th Cir. 1992).
Fundamental errors are those that “result in . . .
constitutional violations,” and they generally do require
suppression, “unless the officers can show objective good
faith reliance as required by” the good faith exception to the
exclusionary rule under the Fourth Amendment. Id. By
contrast, non-fundamental, merely technical errors require
suppression only if the defendant can show either that (1) he
was prejudiced by the error, or (2) there is evidence of
“deliberate disregard of the rule.” Id. We need not consider

 12

UNITED STATES V. HENDERSON

these additional factors if we determine that the Rule 41
violation was indeed fundamental.
1
Henderson contends that the violation here was
fundamental. Specifically, he argues that the NIT warrant
violated the Fourth Amendment because, by issuing the
warrant in violation of Rule 41(b), the magistrate judge acted
beyond her constitutional authority. The government
disagrees, characterizing Rule 41(b) as merely a technical
“venue provision” that does not implicate the scope of a
magistrate judge’s underlying authority or the Fourth
Amendment.
We agree with Henderson that Rule 41(b) is not merely
a technical venue rule, but rather is essential to the
magistrate judge’s authority to act in this case.
Federal magistrate judges “are creatures of statute.”
NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir.
1994). The Federal Magistrates Act, 28 U.S.C. § 636,
defines the scope of a magistrate judge’s authority, imposing
jurisdictional limitations on the power of magistrate judges
that cannot be augmented by the courts. See A-Plus Roofing,
Inc., 39 F.3d at 1415; cf. United States v. Krueger, 809 F.3d
1109, 1122 (10th Cir. 2015) (Gorsuch, J., concurring)
(“Section 636(a)’s territorial restrictions are jurisdictional
limitations on the power of magistrate judges.”).
Relevant here, § 636 authorizes magistrate judges to
exercise “all powers and duties conferred or imposed” by the
Federal Rules of Criminal Procedure. 28 U.S.C. § 636(a)(1).
In turn, Rule 41(b) has been asserted as the sole source of
the magistrate judge’s purported authority to issue the NIT
warrant in this case. But, as we have explained, in issuing

 UNITED STATES V. HENDERSON

13

such warrant, the magistrate judge in fact exceeded the
bounds of the authority conferred on magistrate judges under
Rule 41(b). Thus, such rule plainly does not in fact confer
on the magistrate judge the authority to issue a warrant like
the NIT warrant. Without any other source of law that
purports to authorize the action of the magistrate judge here,
the magistrate judge therefore exceeded the scope of her
authority and her jurisdiction as defined under § 636. 5

5
Moreover, even if the government were correct in asserting that
Rule 41(b) was not violated or that such Rule is merely a technical venue
provision, the government fails to grapple with the independent
territorial limitations imposed upon a magistrate judge’s jurisdiction by
§ 636 itself. See 28 U.S.C. § 636(a) (magistrate judges hold their powers
“within the district in which sessions are held by the court that appointed
the magistrate judge, at other places where that court may function, and
elsewhere as authorized by law”). That is, even if the government is
correct that the magistrate did not exceed her statutory authority as a
result of the Rule 41(b) violation, such action may still have
independently violated § 636’s similar territorial restrictions. See
Krueger, 809 F.3d at 1121 (“[E]ven Rule 41(b) is consistent with the
notion that § 636(a) imposes independent territorial restrictions on the
powers of magistrate judges.”) And, once again, if the magistrate judge
did violate § 636’s own inherent territorial limitations, such action
therefore exceeded the bounds of her statutory authority. See A-Plus
Roofing, Inc., 39 F.3d at 1415 (“[M]agistrates are creatures of statute,
and so is their jurisdiction. We cannot augment it; we cannot ask them to
do something Congress has not authorized them to do.”); Krueger,
809 F.3d at 1119 (Gorsuch, J., concurring) (“I do not doubt that the [Rule
41] error here is one of statutory dimension . . . . As a matter of plain
language, [§ 636] indicates that rulemakers may provide what powers a
magistrate judge will have. But the statute also expressly and
independently limits where those powers will be effective.”). We need
not and do not consider whether the NIT warrant in this case would be
permitted under § 636’s independent territorial limitations.

 14

UNITED STATES V. HENDERSON
2

Having concluded that the magistrate judge issued a
warrant in excess of her jurisdictional authority to do so, we
next must determine whether conducting a search pursuant
to such a warrant violates the Fourth Amendment. See
Negrete-Gonzales, 966 F.2d at 1283 (noting that
fundamental Rule 41 violations are those that result in
constitutional violations).
The Fourth Amendment to the U.S. Constitution
guarantees:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
U.S. Const. amend. IV. This guarantee “must provide at a
minimum the degree of protection it afforded when it was
adopted.” United States v. Jones, 565 U.S. 400, 411 (2012);
see also Atwater v. City of Lago Vista, 532 U.S. 318, 326
(2001) (“In reading the Amendment, we are guided by the
traditional protections against unreasonable searches and
seizures afforded by the common law at the time of the
framing.” (internal quotation marks omitted)). Thus, we
must look to the original public meaning of the Fourth
Amendment.
At the time of the framing, it was understood that
“[w]hen a warrant is received by [an] officer, he is bound to
execute it,” only “so far as the jurisdiction of the magistrate

 UNITED STATES V. HENDERSON

15

and himself extends.” 4 William Blackstone, Commentaries
*291 (cited by Krueger, 809 F.3d at 1123 n.4). And, “[a]cts
done beyond, or without jurisdiction,” according to
Blackstone, “are utter nullities.”
Samuel Warren,
Blackstone’s Commentaries, Systematically Abridged and
Adapted 542 (2d. ed. 1856). Sir Matthew Hale likewise
wrote that a warrant is valid only “within the jurisdiction of
the justice granting or backing the same.” 2 Matthew Hale,
Historia Placitorum Coronae 110 n.6 (1736). Thomas
Cooley later recognized the same principle in his canonical
treatise on American constitutional law: in order for a
reasonable search or seizure to be made, “a warrant must
issue; and this implies . . . a court or magistrate empowered
by the law to grant it.” Thomas M. Cooley, The General
Principles of Constitutional Law in the United States of
America 210 (1880) (cited by Krueger, 809 F.3d at 1124).
Contemporary courts have agreed. In United States v.
Krueger, for example, the Tenth Circuit considered a
territorially deficient warrant issued by a magistrate judge in
the District of Kansas that authorized a search of a home and
car in Oklahoma. 809 F.3d at 1111. The court held that the
warrant violated Rule 41, but left open the question of
whether such violation also contravened the Fourth
Amendment. Id. at 1114–15. Then-Judge Gorsuch
concurred separately and argued that such a warrant did
violate the Fourth Amendment.
He wrote, “When
interpreting the Fourth Amendment we start by looking to its
original public meaning. . . . The principle animating the
common law at the time of the Fourth Amendment’s framing
was clear . . . [and] [m]ore recent precedent follows this long
historical tradition.”
Id. at 1123–24 (Gorsuch, J.,
concurring). After examining both the historical tradition
and recent precedent, then-Judge Gorsuch concluded:

 16

UNITED STATES V. HENDERSON
[L]ooking to the common law at the time of
the framing it becomes quickly obvious that
a warrant issued for a search or seizure
beyond the territorial jurisdiction of a
magistrate’s powers under positive law was
treated as no warrant at all—as ultra vires and
void ab initio . . .—as null and void without
regard
to
potential
questions
of
‘harmlessness.’

809 F.3d at 1123. Therefore, “a warrant may travel only so
far as the power of its issuing official.” Id. at 1124.
Two other circuits have considered this question in
relation to the same Eastern District of Virginia NIT warrant
at issue here, and each adopted the approach of then-Judge
Gorsuch in Krueger. Both circuits concluded that the Rule
41 violation is a fundamental, constitutional error. 6 In
Werdene, the Third Circuit determined that the NIT warrant
was “void ab initio because it violated § 636(a)’s
jurisdictional limitations and was not authorized by any
positive law.” 883 F.3d at 214. Citing then-Judge Gorsuch’s
observation in Krueger that, at the time of the framing, such
a warrant “was treated as no warrant at all,” the court held
that the violation was therefore “of constitutional
magnitude.” Id. (citing Krueger, 809 F.3d at 1123 (Gorsuch,
J., concurring)). Similarly, in Horton, the Eighth Circuit
agreed that the NIT warrant was “invalid at its inception and
therefore the constitutional equivalent of a warrantless
search.” Horton, 863 F.3d at 1049. Therefore, the Eighth
6

Three other circuits have assumed without deciding that the NIT
warrant violated the Fourth Amendment. See United States v. McLamb,
880 F.3d 685 (4th Cir. 2018); United States v. Levin, 874 F.3d 316 (1st
Cir. 2017); United States v. Workman, 863 F.3d 1313 (10th Cir. 2017).

 UNITED STATES V. HENDERSON

17

Circuit concluded, “the NIT warrant was void ab initio,
rising to the level of a constitutional infirmity.” Id.
The weight of authority is clear: a warrant purportedly
authorizing a search beyond the jurisdiction of the issuing
magistrate judge is void under the Fourth Amendment. We
agree with our sister circuits’ analysis and conclude that the
Rule 41 violation was a fundamental, constitutional error.
C
Even though the Rule 41 violation was a fundamental,
constitutional error, suppression of evidence obtained in
violation of the Fourth Amendment is still not appropriate if,
as it asserts, the government acted in good faith. See
Negrete-Gonzales, 966 F.2d at 1283.
Indeed, whether to suppress evidence under the
exclusionary rule is a separate question from whether a
Fourth Amendment violation has occurred. See Herring v.
United States, 555 U.S. 135, 140 (2009); Leon, 468 U.S. at
906. The exclusionary rule applies only when “police
conduct [is] sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.”
Herring, 555 U.S. at 144. The exclusionary rule does not
apply “when law enforcement officers have acted in
objective good faith or their transgressions have been
minor,” because “the magnitude of the benefit conferred on
such guilty defendants offends basic concepts of the criminal
justice system.” Leon, 468 U.S. at 908. Of crucial
importance here, suppression of evidence is not appropriate
“if the police acted ‘in objectively reasonable reliance’ on
the subsequently invalidated search warrant.” Herring,
555 U.S. at 142 (quoting Leon, 468 U.S. at 922). The
reasonableness of the executing officers’ reliance on the

 18

UNITED STATES V. HENDERSON

warrant and whether there is “appreciable deterrence”
sufficient to justify the costs of suppression here must be
taken into account. Herring, 555 U.S. at 141 (quoting Leon,
468 U.S. at 909).
1
Henderson contends that the good faith exception to the
exclusionary rule should not apply here.
First, Henderson urges that the good faith exception does
not apply to warrantless searches, and therefore does not
apply to searches pursuant to warrants that are void ab initio
because they are effectively warrantless. We find no support
for such a sweeping assertion.
We have held that the good faith exception “may apply
to both technical and fundamental errors” under Rule 41.
Negrete-Gonzales, 966 F.2d at 1283. And “our good-faith
inquiry is confined to the objectively ascertainable question
whether a reasonably well trained officer would have known
that the search was illegal in light of all the circumstances.”
Herring, 555 U.S. at 145 (internal quotation marks omitted).
In focusing on the notion of a warrantless search,
Henderson asks the wrong question. Application of the good
faith exception does not depend on the existence of a
warrant, but on the executing officers’ objectively
reasonable belief that there was a valid warrant. “The
exclusionary rule was crafted to curb police rather than
judicial misconduct.” Herring, 555 U.S. at 142. For
example, the Supreme Court has applied the good faith
exception where a clerk mistakenly told an officer that an
arrest warrant that had been recalled was still outstanding,
id. at 137–38, and where officers have relied on a computer
entry that mistakenly showed that an arrest warrant existed,

 UNITED STATES V. HENDERSON

19

Arizona v. Evans, 514 U.S. 1, 15–16 (1995). Contrary to
Henderson’s argument, the exception therefore may
preclude suppression of evidence obtained during searches
executed even when no warrant in fact existed—if the
officers’ reliance on the supposed warrants was objectively
reasonable.
If the exception may apply in cases where an officer
relied on a valid warrant which had been revoked or a
warrant which never existed, may the exception apply where
the officer relied on a warrant subsequently recognized as
void due to the issuing judge’s jurisdictional violation? As
the Third Circuit has explained, “the good faith exception
applies to warrants that are void ab initio because ‘the
issuing magistrate’s lack of authority has no impact on
police misconduct.’” Werdene, 883 F.3d at 216–17 (quoting
United States v. Master, 614 F.3d 236, 242 (6th Cir. 2010)).
The Eighth Circuit likewise holds that “relevant Supreme
Court precedent leads . . . to a similar conclusion: that the
Leon exception can apply to warrants void ab initio like this
one.” Horton, 863 F.3d at 1050. The exclusionary rule
applies only when suppression of the evidence can
meaningfully deter sufficiently deliberate police conduct,
Herring, 555 U.S. at 144, and “[p]enalizing the officer for
the magistrate’s error, rather than his own, cannot logically
contribute to the deterrence of Fourth Amendment
violations.” Horton, 863 F.3d at 1050 (quoting Leon,
468 U.S. at 921) (alteration in original). Therefore,
application of the good faith exception is permitted where a
warrant is void because of a magistrate judge’s jurisdictional
violation, so long as the executing officers had an objectively
reasonable belief that the warrant was valid. We are
unconvinced by Henderson’s argument otherwise, and we
are satisfied that the good faith exception may apply to
warrants that are void ab initio.

 20

UNITED STATES V. HENDERSON
2

Henderson next argues that, even if the exception does
apply to warrants that are void ab initio, it should not apply
here because the government acted in bad faith. Further,
Henderson argues that suppression of the evidence would
deter similarly improper conduct in the future.
Prior to the Rule 41(b)(6) addition, the Federal Rules of
Criminal Procedure did not directly address a NIT-type of
warrant. At the time the government applied for the NIT
warrant, “the legality of [the] investigative technique [was]
unclear.” McLamb, 880 F.3d at 691. In fact, although every
circuit court that has addressed the question has found that
the NIT warrant violated Rule 41, “a number of district
courts have ruled [it] to be facially valid.” Horton, 863 F.3d
at 1052. Henderson’s argument that the government acted
in bad faith in seeking the warrant is not compelling.
Furthermore, there is no evidence that the officers
executing the NIT warrant acted in bad faith. “To the extent
that a mistake was made in issuing the warrant, it was made
by the magistrate judge, not by the executing officers.”
United States v. Levin, 874 F.3d 316, 323 (1st Cir. 2017).
Henderson correctly notes that officers’ reliance on a
warrant is not objectively reasonable when the warrant is “so
facially deficient—i.e., in failing to particularize the place to
be searched or the things to be seized—that the executing
officers cannot reasonably presume it to be valid.” Leon,
468 U.S. at 923; accord. United States v. Luong, 470 F.3d
898, 902 (9th Cir. 2006). However, the NIT warrant
sufficiently described the “place” to be searched—any
“activating computer”—and specified the seven pieces of
identifying information—including the computer’s IP
address—that would be seized, and presented no other facial
deficiency that rendered the officers’ reliance unreasonable.

 UNITED STATES V. HENDERSON

21

Again, one is left to wonder how an executing agent ought
to have known that the NIT warrant was void when several
district courts have found the very same warrant to be valid.
We agree with our sister circuits that have concluded that
“[t]he warrant was . . . far from facially deficient.” Werdene,
883 F.3d at 217; accord. McLamb, 880 F.3d at 691; Levin,
874 F.3d at 323; Horton, 863 F.3d at 1052; United States v.
Workman, 863 F.3d 1313, 1317–18 (10th Cir. 2017).
Further, suppression of the evidence against Henderson
is unlikely to deter future violations of this specific kind,
because the conduct at issue is now authorized by Rule
41(b)(6), after the December 2016 amendment. The
exclusionary “rule’s sole purpose, we have repeatedly held,
is to deter future Fourth Amendment violations,” Davis v.
United States, 564 U.S. 229, 236–237 (2011), and we see no
reason to deter officers from reasonably relying on a type of
warrant that could have been valid at the time it was
executed—and now would be.
“[A] warrant issued by a magistrate normally suffices to
establish that a law enforcement officer has acted in good
faith in conducting the search.” Leon, 468 U.S. at 922
(internal quotation marks omitted). The NIT warrant is not
facially deficient and there is no specific evidence that the
officers did not act in good faith. We are satisfied that the
NIT warrant falls squarely within the Leon good faith
exception: the executing officers exercised objectively
reasonable reliance on the NIT warrant, and “the marginal or
nonexistent benefits produced by suppressing evidence . . .
cannot justify the substantial costs of exclusion.” Id.
Indeed, the five circuits that have addressed motions to
suppress evidence obtained pursuant to the NIT warrant have
denied suppression on the basis of the good faith exception.
See Werdene, 883 F.3d at 218–19; McLamb, 880 F.3d at

 22

UNITED STATES V. HENDERSON

690–91; Levin, 874 F.3d at 324; Horton, 863 F.3d at 1051–
52; Workman, 863 F.3d at 1319–21.
We agree with our sister circuits, and hold that the good
faith exception applies to bar suppression of evidence
obtained against Henderson pursuant to the NIT warrant.
III
The judgment of the district court is AFFIRMED.