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The FBI’s Operation Pacifier placed many lawyers and civil rights advocates in an awkward position. From a perspective, the FBI hunted down and took down some of society’s most hated using any means necessary. But from another, the Department of Justice illegally hacked thousands of computers and then refused to disclose evidence. Thus, many judges ruled that the government’s evidence was invalid illegal invasion of privacy and did nothing but let the defendants walk free.

Stephen Montemayor of the Star Tribune wrote about a PlayPen case that is currently setting a precedent for how such cases unfold. Terry Lee Carlson, a 47-year-old from Minnesota, landed in custody following Operation Pacifier. And now he joins the ranks of a growing number of suspects that successfully suppressed the FBI’s evidence.

As the nation well knows, the FBI used an illegal warrant to find suspects to identify. That is not how warrants work. A government agency requests a warrant with a specific scope and target and then investigates the suspect(s) based on that information.

U.S. Magistrate Judge Franklin Noel agreed with Lee Johnson’s motion to dismiss any evidence admitted as a result of the FBI’s warrant. Johnson’s motion requested U.S. Magistrate Judge Noel suppress not only evidence from the search and seizure, but also evidence obtained as a result of any statements made by Terry Carlson. U.S. Magistrate Judge Noel granted the attorneys motion to suppress any evidence obtained as a direct result of the FBI’s warrant—this included the evidence obtained during the search of the defendant’s house. And, he both granted and denied separate parts of the motion to suppress Carlson’s statements.

The District Court of Minnesota Judge fully described the reasoning for his decisions and gave reasons why, even if the government could legally explain the use of the warrant, the evidence would still be inadmissible as the data collected by the NIT was not covered under the warrant in the first place:

“This Court is aware of no lawful way for the Government to deploy this investigative technique. Assuming without deciding that some way could be devised to use the technology employed here, the Court concludes that the Govemment, by using the NIT malware to collect data from Carlson’s activating computer conducted an unlawful search that was not supported by a lawful warrant.”

He further concluded that the rule violated rule 41(b) and that;

  • the violation was not a technicality
  • the NIT warrant was void from the beginning (“ab initio”)
  • the warrant prejudiced Carlson and “recklessly disregarded proper procedure”
  • the “good faith exception” for acting on evidence from an illegal warrant did not apply since the warrant was invalid from the beginning
  • the only remedy to the case is suppression of evidence derived from the NIT warrant
  • and lastly that Carlson’s motion to suppress evidence from the search and seizure must be granted

“The purpose and flagrancy of the FBI’s misconduct in attempting to obtain the NIT warrant and deploying the NIT malware is truly staggering,” U.S. Magistrate Judge Franklin Noel wrote. “In essence, the FBI facilitated the victimization of minor children and furthered the commission of a more serious crime.”

This case is far from the first where the government ruled against the FBI and will certainly not be the last.

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