D.Utah: No constitutional requirement of a search protocol in an email warrant

A highly specific email search warrant with a catchall phrase was not overbroad. The investigators, however, had to cull through a significant body of irrelevant emails because a keyword search would not reveal coded language. Irrelevant emails were separated after review. This did not make the warrant facially overbroad or overbroad in execution. Also, the lack of a search protocol is not constitutionally mandated. Finally, the good faith exception applies. United States v. Lustyik, 2014 U.S. Dist. LEXIS 33186 (D. Utah March 11, 2014), amended 2014 U.S. Dist. LEXIS 54819 (D. Utah April 16, 2014):

Similarly, the warrants here are restricted by the limiting list. The limiting language in the warrants is quite different from the warrants in cases Mr. Lustyik and Mr. Thaler cite, in which there was no limiting language. See, e.g., United States v. Otero, 563 F.3d 1127, 1132-33 (10th Cir. 2009) (invalidating portions of the warrant that lacked explicit or implicit limitations and noting that subject headings and paragraph formation are useful tools in reading warrants in context); United States v. Riccardi, 405 F.3d 852, 862-63 (10th Cir. 2005) (invalidating warrant where it was not limited to any particular federal crime or particular files).

Defendants also claim that the warrants are overly broad because they do not include a search protocol. The Tenth Circuit has unequivocally rejected the same argument. See, e.g., Brooks, 427 F.3d at 1251 (“[t]his Court has never required warrants to contain a particularized computer search strategy”); Burgess, 576 F.3d at 1093 (“It is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, file-name or extension or to attempt to structure search methods—that process must remain dynamic.”). Instead, the search is to be limited by the content called for in the warrant itself, and the Government may look in all files where such content might be found. Burgess, 576 F.3d at 1092-94.

As the Supreme Court has noted, “[n]othing in the language of the Constitution or in this Court’s decisions … suggests that, in addition to the [requirements set forth in the text of the Fourth Amendment], search warrants also must include a specification of the precise manner in which they are to be executed.” United States v. Grubbs, 547 U.S. 90, 98, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006) (quoting Dalia v. United States, 441 U.S. 238, 255, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979)). Search protocols are, at their core, directions to the officer about how he may execute the warrant, and then subsequently analyze the seized evidence. Grubbs and Dalia make clear, however, that the Fourth Amendment’s particularity clause does not require a warrant to say anything about how a warrant is executed, even if there is the potential to affect Fourth Amendment rights in unexpected ways. “It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers.” Dalia, 441 U.S. at 258.

The search warrants were not facially deficient. Defendants’ motions to suppress on that basis are denied.