EBEL, Circuit Judge.
This appeal arises from the district court's order granting Defendant-Appellee Zachary Krueger's motion to suppress evidence seized in Oklahoma pursuant to a warrant that was issued by a United States magistrate judge in Kansas. In granting Krueger's motion, the district court concluded that suppression was necessary because (1) the warrant violated Fed.R.Crim.P. 41, which generally limits a
In June 2013, Homeland Security Investigations ("HSI") Agent Rick Moore learned that child pornography was being distributed over the internet from an IP address registered to Krueger, a Kansas resident. Agent Moore thereafter obtained a warrant from a United States magistrate judge in the District of Kansas ("Warrant 1") to search Krueger's Kansas residence for items such as computers and cell phones that may be used to depict child pornography visually. Upon executing Warrant 1 at 6:40 a.m. on June 13, however, Agent Moore discovered that Krueger was not home and that his computer and cell phone were not in the residence. Krueger's roommate, who was present when Agent Moore executed the warrant, indicated that Krueger was in Oklahoma City visiting a friend, Nate Benner, and that Krueger may have taken his computer and cell phone with him to Oklahoma.
Based on this information, Agent Moore asked Oklahoma-based HSI Agent Jeff Perkins to verify Krueger's whereabouts. That same day, June 13, Agent Perkins identified Krueger's automobile parked outside of Benner's Oklahoma residence. Agent Moore then sought and obtained a second warrant from a different United States magistrate judge in the District of Kansas ("Warrant 2"). This warrant — which was issued just hours after Agent Moore had executed Warrant 1 — authorized law enforcement to search both Benner's Oklahoma residence and Krueger's automobile parked outside of Benner's residence for electronic devices belonging to Krueger or in his possession.
Agent Moore transmitted Warrant 2 to Agent Perkins in Oklahoma immediately after it was issued by the United States magistrate judge in Kansas. Upon receiving Warrant 2, Agent Perkins and a team of other agents went to Benner's Oklahoma residence. Krueger was present when the agents executed Warrant 2 at 12:30 p.m. on June 13, seizing (among other things) Krueger's computer and external hard drive.
Shortly after entering Benner's residence, however, one of the agents noticed that Warrant 2 had been issued by a federal magistrate judge in the District of Kansas — rather than a federal magistrate judge in the Western District of Oklahoma, the district within which Benner's residence is located — and asked Agent Perkins if that was acceptable. Agent Perkins promptly called Agent Moore in Kansas, who was then advised by the Assistant United States Attorney handling the case to refrain from searching the computer and hard drive until consent or an additional warrant could be obtained. Around the time that Agent Perkins was on the phone, an agent who was not aware of the potential defect in Warrant 2 was interviewing Krueger. During this interview, Krueger waived his Miranda rights, admitted to viewing child pornography and trading it with others over the internet, and authorized HSI agents to assume his online presence with respect to his peer-to-peer networking account for investigative purposes.
Krueger thereafter filed a pretrial motion to suppress the evidence seized in Oklahoma as well as the statements he made to law enforcement. See Fed. R.Crim.P. 12(b)(3), 41(h). Most relevant on appeal, Krueger asserted that suppression was necessary because Warrant 2 violated Fed.R.Crim.P. 41, the general provision governing all searches and seizures that are "federal in character." See United States v. Pennington, 635 F.2d 1387, 1389 (10th Cir.1980). Specifically, Krueger argued that Warrant 2 — which was issued by a federal magistrate judge in the District of Kansas for property already located in Oklahoma — violated Rule 41(b)(1), which provides that "a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district."
According to Krueger, this Rule 41 violation required suppression because Warrant 2, having been issued by a federal magistrate judge without authority to do so, was void from the outset, thereby rendering the Oklahoma search warrantless and unconstitutional.
After a suppression hearing, the district court granted Krueger's motion. In so doing, the district court concluded that Warrant 2 violated Rule 41(b)(1).
The district court thereafter set the matter for trial. Shortly before trial commenced, the Government filed a timely notice of appeal.
On appeal, the Government concedes for the first time that Warrant 2 violated Rule 41(b)(1) because the United States magistrate judge in the District of Kansas did not have authority to issue a warrant for property already located in Oklahoma. Given the obviousness of this Rule 41 defect on the record before us, the Government's belated concession is a prudent one.
A. Standard of review
A defendant who moves to suppress evidence obtained through a search with a warrant bears the initial burden of establishing that the search was illegal. See 3A Fed. Prac. & Proc.Crim. § 689 (4th ed.) (online database updated April 2015). We review a district court's legal rulings on such a motion de novo. United States v. McDowell, 713 F.3d 571, 574 (10th Cir. 2013).
B. Rule 41 analytical framework
Where, as here, a district court determines that a Rule 41 violation justifies suppression, our review is guided by the analytical framework this Court adopted in United States v. Pennington, 635 F.2d 1387 (10th Cir.1980). See United States v. Pulliam, 748 F.3d 967, 973-74 (10th Cir. 2014) (applying the Pennington framework to determine whether a purported Rule 41 violation justified suppression). Under this framework, we begin by considering whether Rule 41 was in fact violated. If so, we typically proceed by determining whether that specific Rule 41 violation rises to the level of a Fourth Amendment violation. See Pennington, 635 F.2d at
1. The Government concedes that Rule 41(b)(1) was violated
The first step in the Pennington framework is easily established because the Government concedes that Warrant 2 violated Rule 41(b)(1)'s within-district limitation on federal magistrate judges' warrant-issuing authority.
2. We need not determine whether the Rule 41(b)(1) violation in this case rises to the level of a Fourth Amendment violation
Because there is a clear Rule 41(b)(1) violation here, we would typically proceed through the Pennington framework by considering whether this specific Rule 41 violation rises to the level of a Fourth Amendment violation — i.e., we would consider whether an outside-of-district warrant issued by a federal magistrate judge who lacks authority to do so under Rule 41 violates the Fourth Amendment. The district court did not address this question, which would present an issue of first impression in this Circuit. The Government urges us to conclude that there was no constitutional violation in this case, arguing that any within-district limitation on federal magistrate judges' warrant-issuing authority is a feature of Rule 41 and the Federal Magistrates Act, 28 U.S.C. § 636(a)(1) — not a Fourth Amendment requirement. According to the Government, when it comes to who issues a warrant, all that the Fourth Amendment requires is a neutral and detached magistrate.
However, we need not decide the constitutionality of the Rule 41(b)(1) violation at issue here because doing so would not alter the outcome of this appeal. See United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir.1996) (en banc) (declining to decide the constitutionality of the warrantless use of a thermal imager to scan the defendant's residence because the detective's affidavit was by itself sufficient to establish probable cause). On appeal, the Government abandoned all of the arguments it made against suppression below except its argument that Krueger failed to establish prejudice. See supra p. 1113 n. 5. Because the Government offers no other basis for reversal,
3. Krueger established prejudice in the sense that the Oklahoma search might not have occurred had Rule 41(b)(1) been followed
Accepting for purposes of our analysis the Government's contention that this Rule 41(b)(1) violation does not offend the Fourth Amendment, we next consider whether Krueger established that suppression was justified by showing either (1) prejudice in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) intentional disregard for a provision of the Rule. See Pennington, 635 F.2d at 1390. Because Krueger does not contest the district court's determination that neither the Kansas magistrate judge nor the HSI agents acted in bad faith, meaning that they did not intentionally disregard Rule 41, our analysis focuses on whether Krueger established prejudice.
This Court has not yet had occasion to consider whether suppression is justified when a warrant is issued by a federal magistrate judge who clearly lacks authority to do so under Rule 41(b)(1).
On appeal, the Government argues that the district court applied the wrong prejudice standard in determining that the search might not have occurred. According to the Government, instead of asking whether the federal magistrate judge in the District of Kansas could have issued Warrant 2 in compliance with Rule 41, the district court should have asked whether any federal magistrate judge in the Western District of Oklahoma, the district within which Benner's residence is located, could have issued Warrant 2. We disagree.
Unlike the standard that the district court adopted — which would allow defendants to establish prejudice when the Government seeks and obtains a search warrant from a federal magistrate judge who lacks warrant issuing authority under Rule 41 — the Government's proposed standard would preclude defendants from establishing prejudice in this context so long as the Government hypothetically could have obtained the warrant from a different federal magistrate judge with warrant-issuing authority under the Rule. When it comes to something as basic as who can issue a warrant, we simply cannot accept such a speculative approach. Thus, instead of focusing on what the Government could have done to comply with Rule 41(b)(1), we conclude that prejudice in this context should be anchored to the facts as they actually occurred.
Applying this standard, we conclude that Krueger established prejudice in the sense that the Oklahoma search might not have occurred because the Government would not have obtained Warrant 2 had Rule 41(b)(1) been followed. The Government sought and obtained Warrant 2 from a federal magistrate judge in the District of Kansas who clearly lacked Rule 41 authority
Because Krueger met his burden of establishing prejudice and because suppression furthers the purpose of the exclusionary rule by deterring law enforcement from seeking and obtaining warrants that clearly violate Rule 41(b)(1),
For the foregoing reasons, we affirm the district court's order and remand for further proceedings consistent with this opinion.
GORSUCH, Circuit Judge, concurring in the judgment.
At the heart of the Fourth Amendment lies the promise that the government will not search your home without a warrant, your consent, or at least some real emergency. To justify its search of a home in this case the government relies exclusively on the claim that it had a warrant. But — and by its own concession — the magistrate judge who issued the warrant lacked statutory authority to do so. In this appeal, the government asks us to overlook this defect and declare the warrant somehow valid all the same for Fourth Amendment purposes. A sort of phantom warrant, then, disappearing whenever you look to positive law and manifesting itself only before the
Here's the source of the government's problem. The Federal Magistrates Act identifies only three geographic areas in which a federal magistrate judge's powers are effective:
The problem in this case is that a magistrate judge purported to exercise power in none of these places. The government "readily concede[s]" that the statute imposes geographic limitations on the powers of magistrate judges. Reply Br. at 16. The government readily concedes, too, that a federal magistrate judge assigned to the District of Kansas violated these restrictions when he purported to warrant the search of a home in Oklahoma. See id. And surely that's right: warranting a search in Oklahoma — authorizing governmental intrusion into private property located there — is exercising power in Oklahoma. And just as obviously, Oklahoma isn't within the District of Kansas, it isn't a place where the Kansas federal district court may function, and it isn't a place where the Kansas magistrate judge is otherwise specifically authorized to act by law. So putting the point plainly, the warrant on which the government seeks to justify its search in this case was no warrant at all when looking to the statutes of the United States.
This is a point worth pausing over. For while in some places the government's briefs candidly admit that the warrant in this case was indeed statutorily invalid in light of § 636(a)'s territorial restrictions, in other places its briefs seem to take the view that any infraction in this case implicated only Rule 41 of the Federal Rules of Criminal Procedure and not any statutory command.
Neither is it surprising that the government might wish to elide the distinction between a violation of the rules and a violation of statute, for the government proceeds to ask us to apply a circuit precedent holding that we should not suppress evidence found in searches that violate only the terms of Rule 41 unless and until the defendant shows prejudice flowing from the violation. And the government suggests that the defendant in this case cannot show any prejudice flowing from the fact that a Kansas magistrate judge issued the contested warrant, for an Oklahoma magistrate judge surely would have issued the same (and otherwise lawful) warrant if asked. By its own terms, however, the precedent on which the government rests for the notion that the defendant must prove prejudice — United States v. Pennington, 635 F.2d 1387 (10th Cir. 1980) — applies only when a defendant claims a violation of Rule 41. Pennington imposes no similar duty on defendants claiming a violation of a statutory command or the Fourth Amendment (or for that matter any other rule of criminal procedure). See id. at 1390. So, as it happens, quite a lot turns on the question whether the error before us implicates only Rule 41 or also a federal statute.
Put in a way your high school English teacher might appreciate, the magistrate judge is the subject of the sentence in § 636(a), his powers and duties are the objects of that sentence, and the language beginning "within the district" is a prepositional phrase that modifies (and so limits the reach of) the verb "shall have." In this way, the grammatical structure of the sentence indicates that magistrate judges shall have those powers specified by rule or other law (e.g., Rule 41), but those powers are effective only in certain specified geographic areas — and, as we've seen, none of those areas is implicated here. So malign your high school grammar class all you want and rejoice in the fact no one teaches it anymore: it holds the key to the statute before us and, really, there just isn't any better preparation for the job of understanding and giving effect to so many of the complex (often run-on) sentences that (over?) populate today's statute books.
Confirming this reading of § 636(a) is that any other interpretation would render large chunks of the law superfluous. So,
Accepting, then, that Congress's territorial restrictions deserve to be given some effect, you might wonder if the government could at least read the statute's last geographic limitation ("elsewhere as authorized by law") as referencing the Federal Rules of Criminal Procedure, not just other statutes. But this interpretation would quickly prove as problematic as its predecessor for a few reasons. It would still render the first two (if not all three) of Congress's express statutory geographic restrictions pretty pointless, for it would leave the rulemakers free to amend Rule 41 to authorize magistrate judges to issue warrants for searches anywhere in the country under any circumstances. Also, the text of the clause says "elsewhere as authorized by law" — not "elsewhere as authorized by law or rule." And the statute itself expressly distinguishes between laws and rules: in describing what powers magistrate judges have within their territorial jurisdictions, the statute says magistrate judges have the powers given them by law or by rule. So when it comes to where magistrate judges may exercise those powers, the absence of any reference to the rules would seem of some significance. Along these lines, it seems relevant as well that Congress often distinguishes between laws and rules. See, e.g., 15 U.S.C. § 2403(c) (2012); 16 U.S.C. § 284a (2012); 48 U.S.C. § 1823(b) (2012). And, finally, this reading of the statute entails with it a judgment that Congress could and did implicitly delegate to rulemakers its legislative power to define the jurisdiction of federal judicial officers-a power not normally thought assigned to rulemakers by the Rules Enabling Act or Constitution. See generally Willy v. Coastal Co7p., 503 U.S. 131, 135, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992); United States u. Mitchell, 18 F.3d 1355, 1360 n. 7 (7th Cir.1994); see also supra n. 2 (authorities offering a different interpretation of this language that raises no such issues).
Retreating yet again, you might ask if the government could at least read the statute's territorial limitations as applying to the magistrate judge himself and not to the powers he "shall have." But this reading, too, would mangle the statute's construction — supposing that the phrase beginning "within the district ..." modifies the subject of the sentence rather than its verb — as if the law read "a magistrate judge within his district ... shall have the powers and duties the law prescribes." And mangling the sentence structure in this way would yield some most unlikely results as well. It would mean that a Kansas magistrate judge would have no power to act on matters back home in his district while he's vacationing in Colorado. It would mean too (and conversely) that a
Taking in the statute's legal surroundings provides further confirmation of the conclusion its plain language and logic already suggest.
Consider the statutory structure surrounding § 636(a). It reveals that § 636(a)'s three specified geographic areas are not empty categories but fit with and find content in other easily identified statutes. First, "within the district in which sessions are held by the court that appointed the magistrate judge" is linked to 28 U.S.C. §§ 81-131 (2012), which designate the boundaries of federal districts and the locations of court sessions. In turn, "other places where that court may function" points to 28 U.S.C. § 141(b) (2012), which authorizes special court sessions outside the district. And "elsewhere as authorized by law" references laws like § 219 of the Patriot Act, which empowers magistrate judges to issue search warrants for property beyond their district if certain terrorism activities might have occurred within their district. USA PATRIOT ACT, Pub.L. No. 10756, § 219, 115 Stat. 291 (2001).
History shows, as well, that territorial restraints on the powers of magistrate judges are nothing new. In fact, Congress has always taken care to impose relatively tight territorial limits on the powers of magistrate judges and their predecessors (commissioners). See 12 Charles Alan Wright et al., Federal Practice and Procedure § 3066 (2d ed.1997). As originally enacted, § 636(a) itself allowed magistrate judges to exercise power only within the district of their appointment. See 28 U.S.C. § 636(a) (2000). It took Hurricane Katrina and the complications it imposed on the operation of the federal courts in Louisiana before Congress was willing to extend the power of magistrate judges to "other places" in which the district court is permitted to function and "elsewhere as authorized by law." See Federal Judiciary Emergency Special Sessions Act of 2005, Pub.L. No. 109-63, 119 Stat. 1993.
Finally, even Rule 41(b) is consistent with the notion that § 636(a) imposes independent territorial restrictions on the powers of magistrate judges: that rule grants to magistrate judges the power to do certain specified things — but only if they first have "authority within the district," a question the rules themselves do not purport to answer and that can be answered only by circling back to § 636(a).
But after (sometimes) conceding a violation of § 636(a) in this case the government never follows up with a statutory harmless error argument on its own behalf. It never suggests that its violation of § 636(a) should be disregarded under § 2111. And it turns out the government doesn't attempt the argument for a clear and clearly correct reason. Section 636(a)'s territorial restrictions are jurisdictional limitations on the power of magistrate judges and the Supreme Court has long taught that the violation of a statutory jurisdictional limitation — quite unlike the violation of a more prosaic rule or statute — is per se harmful. See, e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 n. 3, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) ("[A] litigant's failure to clear a jurisdictional hurdle can never be `harmless'...."). Of course, courts must exercise great caution before appending the jurisdictional label to a statute: often Congress seeks to provide only claim-processing rules for the parties to choose to invoke or waive and their loss sometimes can be held harmless. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). But if § 636(a)'s territorial restraints aren't jurisdictional, I struggle to imagine statutory restraints that would be.
Here's why. Statutes that speak to "statutory or constitutional power to adjudicate" rather than the rights and claims of the parties are usually treated as jurisdictional. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). And § 636(a) does just that. It makes no mention of the rights of parties or rules for processing their claims. Instead, it expressly — and exclusively — refers to the territorial scope of a magistrate judge's power to adjudicate. Context provides further clues pointing in the same direction. Section 636(a) is found in Title 28 of the U.S. Code — the same title as the statutes that define a district court's jurisdiction. Cf. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1158 (10th Cir.2013) (Gorsuch, J., concurring), aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). And while 28 U.S.C. §§ 1331-32 generally
With that it's — finally — possible to turn to the main event in this appeal. We can now accept as correct the government's (sometimes) concession that the warrant issued in this case was unlawful, beyond the magistrate judge's statutory jurisdiction to authorize. And with that in hand we can confront directly the government's phantom warrant argument — its contention that a warrant issued in defiance of the jurisdictional territorial restraints on a magistrate judge's power under statutory law somehow remains a valid warrant under the Fourth Amendment.
When interpreting the Fourth Amendment we start by looking to its original public meaning — asking what "traditional protections against unreasonable searches and seizures" were afforded "by the common law at the time of the framing." Atwater v. City of Lago Vista, 532 U.S. 318, 326, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (internal quotation mark omitted). Whatever else it may do, the Fourth Amendment embraces the protections against unreasonable searches and seizures that existed at common law at the time of its adoption, and the Amendment must be read as "provid[ing] at a minimum" those same protections today. United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 953, 181 L.Ed.2d 911 (2012).
That principle, it seems to me, poses an insurmountable problem for the government in this case. For looking 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 to use some of the law's favorite Latin phrases — as null and void without regard to potential questions of "harmlessness" (such as, say, whether another judge in the appropriate jurisdiction would have issued the same warrant if asked). So, for example, a justice of the king's bench with nationwide territorial jurisdiction afforded by Parliament could issue a warrant anywhere in the kingdom. Meanwhile, warrants issued by justices of the peace — county officials empowered to act only within their respective counties — were executable only within those same limited bounds. See, e.g., 4 William Blackstone, Commentaries *291-92; 2 Matthew Hale, Historia Placitorum Coronae 111 (1736); Engleman v. Deputy Murray, 546 F.3d 944, 948-49 (8th Cir.2008).
More recent precedent follows this long historical tradition, marching in support of the same conclusion. In discussing the Fourth Amendment's demands the Supreme Court has spoken of the need for a "valid warrant" and indicated that for warrants to be valid they must emanate from "magistrates empowered to issue" them. United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932); see also Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 210 (1880) (noting that a warrant must issue from "a court or magistrate empowered by the law to grant it"). Time and again state and circuit courts have explained that this means a warrant issued in defiance of positive law's restrictions on the territorial reach of the issuing authority will not qualify as a warrant for Fourth Amendment purposes.
This court has made the same point too. In United States v. Baker, 894 F.2d 1144 (10th Cir.1990) (per curiam), a state court judge purported to issue a warrant to conduct a search in "Indian territory" related to a possible crime by a Native American. Something that the state court judge had no lawful jurisdiction to do. In these circumstances, this court had no trouble holding that the state court's warrant was no warrant at all for Fourth Amendment purposes. To be sure, and as the government emphasizes, the facts of our current case are different. But the government doesn't suggest why the difference in facts should make a difference in principle — why we should hold that a warrant issued in defiance of the court's jurisdiction should be considered invalid for Fourth Amendment purposes in one case but not the other. Perhaps the closest the government comes to suggesting a reason to distinguish Baker is to observe that neither party there attempted the argument it attempts here — no one tried to suggest that a warrant executed beyond the jurisdiction of the issuing judge remains valid under the Fourth Amendment. But I'm still unclear why this should make a difference when Baker expressly proceeded to decide the issue — and when even the government itself today acknowledges that the warrant
Neither are history and precedent without reason to support them. No doubt, some might suggest that enforcing territorial boundaries on the effectiveness of warrants is inefficient and arbitrary. But our whole legal system is predicated on the notion that good borders make for good government, that dividing government into separate pieces bounded both in their powers and geographic reach is of irreplaceable value when it comes to securing the liberty of the people. See generally Bond v. United States, 564 U.S. 211, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011); The Federalist Nos. 28, 32 (Alexander Hamilton), Nos. 46, 51 (James Madison). Ours is not supposed to be the government of the Hunger Games with power centralized in one district, but a government of diffused and divided power, the better to prevent its abuse. Congress has repeatedly displayed a preference for geographically divided power in its treatment of the federal judiciary since the Judiciary Act of 1789 — "almost invariably observ[ing]," for example, the principle that federal judicial districts should not cross state lines. Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and the Federal System 21 (7th ed.2015). And, sensitive to the fact that magistrate judges do not enjoy life tenure and other independence-assuring protections found in Article III, Congress has taken particular care to limit the geographic range of their authority since the very inception of the office — and it would be more than a little ironic for an Article III court to deny effect to Congress's attentive work in this area. See generally Sharon E. Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, 79 Mo. L.Rev. 119 (2014); Henry J. Bourguignon, The Federal Key to the Judiciary Act of 1789, 46 S.C. L.Rev. 647 (1995); Thomas E. Baker, A Catalogue of Judicial Federalism in the United States, 46 S.C. L.Rev. 835 (1995).
Persuaded as I am by this point that we lack a valid warrant for Fourth Amendment purposes, even that doesn't quite finish the story. The Fourth Amendment, after all, doesn't prohibit unwarranted searches but unreasonable ones. And a warrantless search may still be a reasonable one if the government can show consent or exigent circumstances. Even when an unreasonable search does exist, the Supreme Court has explained, we must be persuaded that "appreciable deterrence" of police misconduct can be had before choosing suppression as the right remedy for a Fourth Amendment violation. Herring v. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (internal quotation mark omitted); United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984).
But whatever arguments the government might have once had along these lines it has long since waived. Choosing to place all its eggs in the warrant basket,
So it is that, for all the complications that may lie below the surface in this case and may still surface for resolution in the future, this appeal remains just as it appeared from the beginning. The government asks us to resolve but one question, bold as it is: whether a warrant issued in defiance of positive law's jurisdictional limitations on a magistrate judge's powers remains a warrant for Fourth Amendment purposes. I would not hesitate to answer that question put to us and reply that a warrant like that is no warrant at all. And in that light I am pleased to join my colleagues in affirming the district court's judgment.
Because none of these cases addressed Rule 41(b)(1), which is unique from other provisions of Rule 41 because it implicates "substantive judicial authority," United States v. Berkos, 543 F.3d 392, 397 (7th Cir.2008), they offer limited guidance here.