U.S. v. Werdene — criminal — affirmance — Greenaway

The Third Circuit today held that the government violated the Rule 41 of the Federal Rules of Criminal Procedure and the Federal Magistrates Act, and thus the Fourth Amendment, when it used “a form of government-created malware” (!) to search thousands of computers nationwide using a single warrant issued in Virginia. But the court affirmed, holding that the violation was shielded by the good-faith exception to the exclusionary rule.

Judge Nygaard concurred to discuss an important procedural point: whether an appellate court may affirm on a ground that the appellee conceded below. He writes, ” This is an interesting question and one that in my nearly three decades on this court I have not encountered.” He ends: ” I point out my thoughts on this matter nonetheless solely to remind practitioners of that old adage, ‘you cannot have it both ways.’ In my opinion, conceding a fact or a legal point in the District Court prevents us from affirming on that basis.”

Joining Greenaway were Nygaard and Fisher. Arguing counsel were Brett Sweitzer of the EDPA federal defender for the defendant and Michelle Morgan for the government.