United States v. Werdene, No. 16-3588 (3d Cir. 2018)Annotate this Case
Investigating Playpen, a global dark-web child pornography forum with more than 150,000 users, the FBI relied on a single search warrant, issued in the Eastern District of Virginia, to search the computers of thousands of Playpen users all over the world, using malware called a “Network Investigative Technique” (NIT). Werdene, a Pennsylvania citizen, was a Playpen user whose computer was compromised by the NIT. He was charged in the Eastern District of Pennsylvania with possessing child pornography, 18 U.S.C. 2252(a)(4)(B). The Third Circuit affirmed the denial of his motion to suppress. The NIT warrant violated the prior version of Federal Rule of Criminal Procedure 41(b) with respect to jurisdictional limits and the magistrate judge exceeded her authority under the Federal Magistrates Act. The warrant was therefore void ab initio, and the Rule 41(b) infraction was a Fourth Amendment violation. However, the good-faith exception to the exclusionary rule may apply to warrants that are void ab initio. The warrant was issued by a neutral, detached, duly-appointed magistrate judge, who determined that it was supported by probable cause and particularly described the places to be searched and things to be seized. The FBI, therefore, acted in good-faith; there is no evidence that it exceeded the scope of the warrant.