IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-51042

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 similarlysituated, 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. 

United States Court of Appeals

Fifth Circuit

FILED

April 24, 2019

Lyle W. Cayce

Clerk

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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 

 

1 The computer server hosting Playpen was seized from a web-hosting facility in 

Lenoir, North Carolina. 

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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 governmentcontrolled 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. 

 

2 The network, a project of the United States Naval Research Laboratory, was 

originally designed and used to protect government communications but is now available to 

the public. 

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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 

 

3 Warrants similar to the warrant issued in the Western District of Texas have issued 

around the country as a result of the NIT warrant, spawning a multitude of challenges in 

federal courts to the validity of the NIT warrant. See United States v. Taylor, 250 F. Supp.

3d 1215, 1222–23 (N.D. Ala. 2017) (compiling cases).

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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 

 

4 Section 636(a), a jurisdictional statute, provides in pertinent part: 

Each United States magistrate judge serving under this chapter shall have 

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—(1) all powers and duties conferred or imposed upon 

United States commissioners by law or by the Rules of Criminal Procedure for 

the United States District Courts.

28 U.S.C. § 636(a)(1).

5 Rule 41(b), titled “Authority to Issue a Warrant,” generally provides that a 

magistrate judge “has authority to issue a warrant to search for and seize a person or 

property located within [his or her] district.” FED. R. CRIM. P. 41(b)(1). The rule also allows

a magistrate judge to issue a warrant pertaining to a person or property outside of his or her 

district under certain specified circumstances. FED. R. CRIM. P. 41(b). Two of those 

circumstances—those referenced in Rule 41(b)(2) and (b)(4)—were potentially relevant to the

NIT warrant at the time of its issuance. Rule 41(b)(2) provides that “a magistrate judge with 

authority in the district has authority to issue a warrant for a person or property outside the 

district if the person or property is located within the district when the warrant is issued but 

might move or be moved outside the district before the warrant is executed.” FED. R. CRIM.

P. 41(b)(2). Rule 41(b)(4) provides that “a magistrate judge with authority in the district has 

authority to issue a warrant to install within the district a tracking device; the warrant may 

authorize use of the 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). 

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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 

 

6 In reaching its conclusion, the district court found that the NIT warrant did not fit 

within Rule 41(b)(2) or (b)(4), either of which would allow it to have extraterritorial effect. 

Specifically, the district court found that “logging into a website, the server for which is in 

the appropriate district, does not rise to the level of the computer being ‘located within the 

district’ [as required by Rule 41(b)(2)].” With respect to the applicability of Rule 41(b)(4), the 

district court rejected the notion that the NIT was a “tracking device,” finding that “[t]he NIT 

is not a device, but a technique” and that it “did not ‘track’ Ganzer’s computer under the 

ordinary understanding of the word ‘track.’”

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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 deterrence by discouraging the government from asking 

magistrate judges to issue warrants that it knows they do not have jurisdiction 

to issue. 

 

7 The appellate court cases that had addressed the propriety of the NIT warrant and 

suppression of its fruits at the time the parties’ briefs were filed are: Werdene, 883 F.3d 204; 

McLamb, 880 F.3d 685; Levin, 874 F.3d 316; Horton, 863 F.3d 1041; and Workman, 863 F.3d 

1313. Three additional circuits took up these issues following the briefing in this case, and, 

for the most part, resolved the issues like the circuits that had previously addressed them. 

See Moorehead, 912 F.3d 963; Kienast, 907 F.3d 522; Henderson, 906 F.3d 1109. 

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For its part, the government makes little effort to defend the validity of 

the warrant. Instead, it focuses on the applicability of the good-faith exception 

and urges us to follow the lead of the other circuits courts that have addressed 

the issue. 

IV.

A.

Because the primary focus of the parties’ briefing is on the good-faith 

exception to the exclusionary rule and because we conclude that the exception 

is applicable here, we decline to address the merits of whether the EDVA 

magistrate had legal authority to issue the NIT warrant and assume, without 

deciding, that she lacked such authority. We further assume that a Fourth 

Amendment violation occurred as a result of the warrant’s issuance. Thus, we

proceed directly to our discussion of the good-faith exception and the propriety

of its application in the context of this case. 

The exclusionary rule was created by the Supreme Court to “supplement 

the bare text” of the Fourth Amendment, which “protects the right to be free 

from ‘unreasonable searches and seizures,’ but . . . is silent about how this right 

is to be enforced.” Davis v. United States, 564 U.S. 229, 231 (2011). It operates 

by generally “bar[ring] the prosecution from introducing evidence obtained by 

way of a Fourth Amendment violation.” Id. The purpose of the rule is to deter 

violations of the Fourth Amendment—not to redress the injury of the victim of 

an unreasonable search or seizure. Id. at 236–37. Thus, application of the rule 

is “not a personal constitutional right.” Id. at 236 (quoting Stone v. Powell, 428 

U.S. 465, 486 (1976)). Nor is it automatic in the face of a Fourth Amendment 

violation. Herring v. United States, 555 U.S. 135, 140 (2009) (citing Illinois v. 

Gates, 462 U.S. 213, 223 (1983)).

Expounding upon on these principles and following an evolving line of 

cases in which it had developed a cost-benefit balancing approach to 

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application of the exclusionary rule, the Supreme Court officially recognized a

“good-faith” exception to the rule in United States v. Leon. 468 U.S. at 907–

913. The Leon Court narrowly defined the exception as allowing admission at 

trial of “evidence obtained by officers acting in reasonable reliance on a search 

warrant issued by a detached and neutral magistrate” but later invalidated. 

Id. at 900. The Court, however, invoked broader Fourth Amendment and 

exclusionary-rule principles in arriving at its holding. In particular, and 

relevant to the case before us, the Court emphasized that “the exclusionary 

rule is designed to deter police misconduct”—not judicial errors or misconduct.8

Id. at 916. On the flip side, the Court noted, “it cannot be expected, and should 

not be applied, to deter objectively reasonable law enforcement activity.” Id. 

at 919. Indeed, where “the officer is acting as a reasonable officer would and 

should act in similar circumstances,” “excluding the evidence will not further 

the ends of the exclusionary rule in any appreciable way.” Id. at 920 (internal 

quotation marks and citation excluded). 

In conducting its analysis, the Leon Court further pointed to the 

“substantial social costs exacted by the exclusionary rule for the vindication of 

Fourth Amendment rights”—namely, “guilty defendants go[ing] free or 

receiv[ing] reduced sentences as a result of favorable plea bargains.” Id. at 

907. “Particularly when law enforcement officers have acted in objective good 

 

8 Specifically, the Court explained:

Many of the factors that indicate that the exclusionary rule cannot provide an 

effective “special” or “general” deterrent for individual offending law 

enforcement officers apply as well to judges or magistrates. And, to the extent 

that the rule is thought to operate as a “systemic” deterrent on a wider 

audience, it clearly can have no such effect on individuals empowered to issue 

search warrants. Judges and magistrates are not adjuncts to the law 

enforcement team; as neutral judicial officers, they have no stake in the 

outcome of particular criminal prosecutions. The threat of exclusion thus 

cannot be expected significantly to deter them.

Leon, 468 U.S. at 916-17.

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faith or their transgressions have been minor,” the Court noted, “the 

magnitude of the benefit conferred on such guilty defendants offends basic 

concepts of the criminal justice system.” Id. at 907–08. Ultimately, the Court 

concluded that its “evaluation of the costs and benefits of suppressing reliable 

physical evidence seized by officers reasonably relying on a warrant issued by 

a detached and neutral magistrate” compelled “the conclusion that such 

evidence should be admissible in the prosecution’s case in chief.” Id. at 913.

The Court clarified, however, that suppression remains an appropriate remedy 

where “it is clear that . . . the officer [had] no reasonable grounds for believing 

that the warrant was properly issued.”9 Id. at 922–23. 

Since its inception, the Supreme Court has expanded the reach of the 

good-faith exception to other contexts. See, e.g., Davis, 564 U.S. at 232, 238–

40 (discussing a line of Supreme Court cases applying the good-faith exception

and extending application of the exception to searches conducted “in objectively 

reasonable reliance on binding appellate precedent” that is later overruled);

Herring, 555 U.S. at 137–38, 144, 147–48 (applying the good-faith exception 

where police reasonably relied upon a computer database record that, due to 

the negligence of a police employee, showed a recalled warrant to still be in 

effect); Arizona v. Evans, 514 U.S. 1, 3–4, 15–16 (1995) (applying the good-faith 

exception where an officer who conducted a search incident to an arrest had 

reasonably relied on an electronic police record that, due to a clerical error,

indicated that a quashed arrest warrant remained outstanding); Illinois v. 

Krull, 480 U.S. 340, 342, 349–50 (1987) (extending application of the good-faith 

exception to searches conducted in reasonable reliance on subsequently 

 

9 As discussed supra, the Court laid out four specific scenarios in which it would be 

clear that the law enforcement official involved had “no reasonable grounds for believing that 

the warrant was properly issued.” Id. at 922–23.

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invalidated statutes). In Davis, the Supreme Court summarized the core of its 

post-Leon exclusionary-rule holdings as follows:

[T]he deterrence benefits of exclusion vary with the culpability of 

the law enforcement conduct at issue. When the police exhibit 

deliberate, reckless, or grossly negligent disregard for Fourth 

Amendment rights, the deterrent value of exclusion is strong and 

tends to outweigh the resulting costs. But when police act with an 

objectively reasonable good-faith belief that their conduct is 

lawful, or when their conduct involves only simple, isolated 

negligence, the deterrence rationale loses much of its force, and 

exclusion cannot pay its way.

Davis, 564 U.S. at 238 (internal quotation marks and citations omitted).

 B.

As previously indicated, Ganzer’s primary argument on appeal is that 

the good-faith exception categorically cannot apply under circumstances where 

a warrant is void ab initio—a description he gives to the NIT warrant. Ganzer 

does not cite any authority in support of his proposition. Instead, he relies on 

the fact that the Supreme Court has not specifically considered and applied 

the good-faith exception in the context of a warrant that is void from its 

inception. He further insists, without explanation, that warrants that are void

ab initio have a defect that is “fundamental” and, therefore, require unique 

treatment in a good-faith exception analysis. Having assumed that the EDVA 

magistrate lacked statutory authority to issue the NIT warrant, we will also 

assume, for argument’s sake, that the warrant was void ab initio and, 

therefore, never had any legal effect. Even with these assumptions, Ganzer’s

argument fails.

As the Supreme Court has recognized, whether a Fourth Amendment 

violation exists and what type of violation is present are separate and distinct 

questions from the question of whether the sanction of exclusion is appropriate 

in a certain case. See Leon, 468 U.S. at 906 (“The wrong condemned by the 

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[Fourth] Amendment is ‘fully accomplished’ by the unlawful search or seizure 

itself, . . . and the exclusionary rule is neither intended nor able to ‘cure the 

invasion of the defendant’s rights which he has already suffered.’” (quoting 

Stone, 428 U.S. at 540)). The fundamental flaw in Ganzer’s argument is that 

it improperly focuses the exclusion inquiry on the character of the underlying 

Fourth Amendment violation, as opposed to whether exclusion would 

sufficiently further the purpose of the Fourth Amendment. See Herring, 555 

U.S. at 141 (“[T]he exclusionary rule . . . applies only where it results in 

appreciable deterrence.” (internal quotation marks and citation omitted)). The 

latter question is answered by looking at “the culpability of the law 

enforcement conduct.” Herring, 555 U.S. at 143. 

With the focus properly on the behavior of the law enforcement officials

involved, there is no reason to distinguish warrants that are void ab initio from 

warrants that are later invalidated or recalled, or even from later-invalidated 

precedent or statutes—each of which, the Supreme Court has held, can be 

reasonably relied upon by officers in conducting a search. See Leon, 468 U.S. 

at 900; Herring, 555 U.S. at 137–38, 144, 147–48; Davis, 564 U.S. at 232, 238-

40; Krull, 480 U.S. at 342, 349–50. In other words, the conduct of an officer 

who reasonably and in good faith relies on a warrant issued by a magistrate 

lacking jurisdiction to issue it is no more culpable than that of an officer who 

reasonably and in good faith relies, for instance, on a faulty indication in a 

database that a recalled warrant remains outstanding. See Herring, 555 U.S. 

at 137–38, 144, 147–48. See also Werdene, 883 F.3d at 216 (“[T]he issuing 

magistrate’s lack of authority has no impact on police misconduct, if the officers 

mistakenly, but inadvertently, presented the warrant to an innocent 

magistrate.” (citation omitted)); Henderson, 906 F.3d at 1118 (holding that 

“[a]pplication of the good faith exception does not depend on the existence of a 

warrant, but on the executing officer’s objectively reasonable belief that there 

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was a valid warrant”). Therefore, we reject Ganzer’s argument that the goodfaith exception to the exclusionary rule categorically cannot apply to warrants 

that are void ab initio.10 This holding is in accordance with the well-reasoned 

decisions of each of our sister circuits to have considered this issue in the 

context of the NIT warrant. See Moorehead, 912 F.3d at 968–69; Kienast, 907 

F.3d at 527–28; Henderson, 906 F.3d at 1118–19; Werdene, 883 F.3d at 216–

17; McLamb, 880 F.3d at 691; Horton, 863 F.3d at 1050–51; Workman, 863 

F.3d at 1317–19.

C.

Having concluded that the good-faith exception can apply in 

circumstances involving a warrant that is void ab initio, we turn to the 

question of whether the exception can properly be applied under the facts of 

this case, again presuming that the EDVA magistrate lacked statutory 

authority to issue the NIT warrant. As previously noted, Ganzer asserts that 

the exception does not apply because of the government’s lack of good faith. 

Specifically, he argues that the government acted either “recklessly or with 

gross negligence in seeking the [NIT] warrant,” since it knew the warrant it

sought was “beyond the scope of Rule 41(b).” He contends that such knowledge 

is demonstrated by efforts of the DOJ well before the NIT warrant was issued 

to have Rule 41(b) amended to specifically allow for warrants like the NIT 

 

10 We add that although this court has not specifically addressed the issue of 

applicability of the good-faith exception to warrants that are void ab initio, it has recognized 

that the exception can apply in the case of a warrantless search. See United States v. De 

Leon-Reyna, 898 F.2d 486, 491 (5th Cir. 1990) (citing United States v. Williams, 622 F.2d 830, 

840 n.1 (5th Cir. 1980) (en banc)); United States v. Comstock, 805 F.2d 1194, 1210 n.18 (5th 

Cir. 1986) (recognizing that reliance on a magistrate is not a requirement for applicability of 

the good-faith exception). If the good-faith exception can save the fruits of an illegal search 

from suppression where no warrant was issued, then, logically, the classification of a warrant 

as “void ab initio” should have no bearing on the applicability of the exception in this circuit. 

For this reason too, we find Ganzer’s argument to be without merit.

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warrant.11 Ganzer claims that these efforts resulted from the refusal of a 

magistrate judge in the Southern District of Texas to issue a similar warrant 

in the context of a fraud investigation. See In re Warrant to Search a Target 

Computer at Premises Unknown, 958 F. Supp. 2d 753 (S.D. Tex. 2013). 

According to Ganzer, “the fact that the DOJ took specific and concrete action 

in response to that decision demonstrates an official recognition on the part of 

the federal law enforcement apparatus as a whole that the decision set forth 

the correct interpretation of Rule 41’s limits in this setting;” and, therefore, 

federal agents could not have acted in good faith in requesting the NIT 

warrant. We disagree with Ganzer’s assessment. 

Preliminarily, we note that in Leon, the Supreme Court identified four 

situations that would indicate the presence of bad faith and call for application 

of the exclusionary rule, despite a warrant having been issued: 1) “the 

magistrate or judge in issuing [the] warrant was misled by information in an 

 

11 In support of his contention, Ganzer points to a letter dated September 23, 2013 

from the DOJ to the chair of the Advisory Committee on the Criminal Rules requesting an 

amendment that would “authorize[] a court in a district where activities related to a crime 

have occurred to issue a warrant—to be executed via remote access—for electronic storage 

media and electronically stored information located within or outside that district.” Mythili 

Raman, Letter to the Honorable Reena Raggi, in Advisory Committee on Criminal Rules, 

Materials for April 7-8, 2014 Meeting at 171 (2013); available at 

http://www.uscourts.gov/sites/default/files/fr_import/CR2014-04.pdf. According to the letter, 

“[t]he proposed amendment would better enable law enforcement to investigate and 

prosecute botnets and crimes involving Internet anonymizing technologies.” See Raman 

letter at 171. Ganzer further points out that at an April 7-8, 2014 meeting of the Advisory 

Committee on Criminal Rules, a DOJ representative acknowledged that Rule 41(b) “on its 

face does not work with” crimes involving anonymizing networks, like Tor, and suggested 

that, absent the requested amendment, the government would be left to litigate the issue and 

“hope the courts [would] create an exception to the rule.” Advisory Committee on Criminal 

Rules, Minutes at 13 (Apr. 7-8, 2014); available at

http://www.uscourts.gov/sites/default/files/fr_import/criminal-min-04-2014.pdf. The 

government does not dispute that these interactions occurred or the DOJ’s efforts to have 

Rule 41(b) amended. Notably, Rule 41(b) was eventually amended to specifically allow for 

warrants like the NIT warrant. However, this amendment did not take effect until December 

1, 2016—almost two years after the NIT warrant’s issuance. 

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affidavit that the affiant knew was false or would have known was false except 

for his reckless disregard of the truth”; 2) “the issuing magistrate wholly 

abandoned his judicial role”; 3) the “affidavit [in support of the warrant is] so 

lacking in indicia of probable cause as to render official belief in its existence 

entirely unreasonable”; and 4) 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.” 468 U.S. at 

923 (internal quotation marks and citations omitted). The challenge posed by 

Ganzer does not correspond to any of these scenarios, and we do not find it to 

be otherwise compelling. 

To be sure, whether the NIT warrant’s issuance was legitimate under § 

626(a) and Rule 41(b) was questionable at the time it was issued. The 

government does not dispute this. This is because the NIT warrant “pose[d] 

difficult conceptual questions” regarding the search that it authorized. 

Kienast, 907 F.3d at 528. The NIT was a “sophisticated tool” developed by the 

FBI in a world of rapidly changing cyber technology in response to the 

“daunting task of [unmasking, locating, and] apprehending tens of thousands 

of individuals engaged in perverse crimes but cloaked in anonymity through 

their use of Tor.” Id. at 529. Whether this new technology fit within the bounds 

of Rule 41(b) when it was developed was not readily apparent, particularly 

given that there was no federal appellate court precedent regarding the 

permissibility of remote-access investigative techniques at the time. McLamb, 

880 F.3d at 689, 691. That being said, it was neither plain nor obvious that 

NIT warrant could not properly be issued under Rule 41(b). This is confirmed 

by the fact that several federal district courts have concluded that the EDVA 

magistrate had authority to issue the warrant under Rule 41(b)(4) concerning 

“tracking device[s].” See United States v. Austin, 230 F. Supp. 3d 828, 832–34 

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(M.D. Ten. 2017) (collecting cases and concluding that the NIT constitutes a 

“tracking device” within the meaning of Rule 41(b)(4)). 

Under these circumstances, we do not construe the government’s efforts 

to have Rule 41(b) amended to specifically allow for warrants like the NIT 

warrant as an admission that such warrants were not previously allowed, but 

rather as an attempt to clarify an existing law’s application to new 

circumstances. The government did not act unreasonably in seeking such a 

clarification. We note that this conclusion is consistent with the Fourth 

Circuit’s holding in McLamb with respect to a similar argument by the 

appellant. In McLamb, the appellant argued that the FBI’s consultation with 

DOJ attorneys prior to seeking the NIT warrant regarding such a warrant’s 

legality demonstrated a “guilty conscience” on the part of the FBI. See 

McLamb, 880 F.3d at 691. The court rejected this argument, instructing that 

where there is not “definitive precedent upon which law enforcement can rely 

when utilizing cutting edge investigative techniques . . . consultation with 

government attorneys is precisely what Leon’s ‘good faith’ expects of law 

enforcement.” Id. See also Moorehead, 912 F.3d at 970 (rejecting the 

appellant’s argument that government attempts to have Rule 41(b) amended 

demonstrated knowledge of the NIT warrant’s illegality). Likewise, we 

conclude that the government acted in accordance with the expectations of the 

Fourth Amendment by seeking to clarify the bounds of an imprecise statutory 

grant of authority in the face of advancing technology. 

Moreover, we do not otherwise detect foul play in the process by which 

the FBI sought the NIT warrant. As the First Circuit aptly recognized in 

Levin: 

Faced with the novel question of whether an NIT warrant can 

issue—for which there was no precedent on point—the government 

turned to the courts for guidance. The government presented the 

magistrate judge with a request for a warrant, containing a 

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detailed affidavit from an experienced officer, describing in detail 

its investigation, including how the NIT works, which places were 

to be searched, and which information was to be seized. 

874 F.3d at 323. Like the Levin court, “[w]e see no benefit in deterring such 

conduct” and agree that, “if anything, such conduct should be encouraged, 

because it leaves it to the courts to resolve novel legal issues.” Id. See also 

Workman, 863 F.3d at 1320–21 (concluding that it was reasonable for the 

federal agents who applied for and executed the NIT warrant to “defer to the 

magistrate judge on . . . nuanced legal issues”). To the extent that the EDVA 

magistrate erred in issuing the NIT warrant, as we have noted, such an error 

is not within the purview of the exclusionary rule. See Leon, 468 U.S. at 916.

In light of the foregoing, we reject Ganzer’s assertion that the good-faith 

exception cannot apply under the facts of this case due to bad faith, gross 

negligence or reckless conduct by the government officials involved. To the 

contrary, we conclude that the law enforcement officials involved in the 

issuance and execution of the NIT warrant acted “with an objectively 

reasonable good-faith belief that their conduct [was] lawful.” Davis, 564 U.S. 

at 238 (internal quotation marks and citations omitted). Again, our conclusion 

is consistent with the holdings of each of our sister circuits to have considered 

challenges to the NIT warrant. See Moorehead, 912 F.3d at 970–71; Kienast, 

907 F.3d at 528–29; Henderson, 906 F.3d at 1119; Werdene, 883 F.3d at 217–

18; McLamb, 880 F.3d at 690–91; Levin, 874 F.3d at 322–4; Horton, 863 F.3d 

at 1051–52; Workman, 863 F.3d at 1319–21. 

V.

Considering the reasonable behavior on the part of the federal agents 

involved in seeking and executing the NIT warrant, we do not ascertain any 

deterrence benefit to be derived from applying the exclusionary rule here, 

much less one that would outweigh the substantial cost that would result from 

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applying the rule, i.e., the inability to effectively prosecute potentially 

thousands of Playpen users. Herring, 555 U.S. at 141 (“To the extent that 

application of the exclusionary rule could provide some incremental deterrent 

[to Fourth Amendment violations], that possible benefit must be weighed 

against its substantial social costs.” (quoting Krull, 480 U.S. at 352–53)). 

Accordingly, we hold that the good-faith exception to the exclusionary 

rule is applicable to the NIT warrant and its fruits and, therefore, AFFIRM 

the district court’s denial of Ganzer’s motion to suppress.

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