Email search warrants in a public corruption case were “particular” within the Fourth Amendment. They were time limited, and the providers deleted electronic information [header information] from the final production that was not specifically sought. The Fourth Amendment does not require a higher standard just because emails are sought. State v. Rindfleisch, 2014 Wisc. App. LEXIS 929 (November 12, 2014):
P7 The warrants issued to Google and Yahoo on October 20, 2010, were substantially similar. Both contained information identifying the statutory authority of the investigation (the John Doe proceeding), and the identifying email account information for the ISPs. Both warrants required:
RECORDS TO BE PRODUCED: For the time period of January 1, 2009, to the present, this warrant applies to information associated with the account identified as … stored at premises owned, maintained, controlled, or operated by [the ISP at their respective headquarters address]. This warrant requires, ON OR BEFORE NOVEMBER 22, 2010 the production of:
a. The contents of all communications stored in the [ISP] accounts for the subscriber(s) identified above, including all emails stored in the account, whether sent from or received in the account as well as e-mails held in a “Deleted” status;b. All records or other information regarding the identification of the accounts, including full name, physical address, telephone numbers and other identifiers, records of session times and durations, the date on which the accounts were created, the length of service, the types of service utilized, the IP address used to register the accounts, log-in IP addresses associated with session times and dates, account statuses, alternative email addresses provided during registration, methods of connecting, log files, and means and source of payment (including any credit or bank account number);
c. All records pertaining to communications between [the ISP] and any person regarding the accounts, including contacts with support services and records of action taken.
P8 The warrant issued to Google additionally included the following production request:
All address books, contact lists, friends[‘] lists, buddy lists, or any other similar compilations of personal contact information associated with the accounts;
P9 Both warrants requested the ISPs to search for evidence of the specific crimes of misconduct in public office and political solicitation involving public officials and employees. The warrants state that the search was to be “for the following evidence of crime”:
For the time period of January 1, 2009 to the present, all records relating to Misconduct in Public Office and Political Solicitation involving Public Officials and Employees, violations of §§ 946.12, 11.36 and 11.61 of the Wisconsin Statutes, including information relating to the financial or other benefit provided to any private and/or political cause or organization either effected using Milwaukee County facilities or effected during periods of normal county work hours or both.
The terms “records” and “information” include all items of evidence in whatever form and by whatever means they may have been created or stored, including any form of computer or electronic storage.
Which objects constitute evidence of the commission of a crime, to wit;
DESCRIBE CRIME OR CRIMES:
(1) Misconduct in Public Office; and
(2) Political Solicitation involving Public Officials and Employees committed in violation of sections 946.12, 11.367 and 11.618 of the Wisconsin Statutes.Both warrants allowed the records to be delivered to the District Attorney’s office.
. . .
P11 On October 28, 2010, Google responded to the warrant stating: “To the extent any document provided herein contains information exceeding the scope of your request, protected from disclosure or otherwise not subject to production, if at all, we have redacted such information or removed such data fields.” At oral argument, counsel for Rindfleisch stated that on November 1, 2010, the State asked to have the John Doe proceedings expanded to include Rindfleisch. Others were also included in the expanded proceedings. The State requested a search warrant for Rindfleisch’s Milwaukee dwelling in West Allis and her Columbia County property. Counsel advised at oral argument that these warrants were executed, with Rindfleisch present, and her personal computer(s) seized. Her counsel also stated that the computer warrants were not being challenged and are not part of this appeal.
P12 Yahoo responded on November 19, 2010, swearing in an affidavit: “Pursuant to the Federal Stored Communications Act, 18 USC §§ 2701 et. Seq., we have redacted information, including removing certain data fields, that exceeds the scope of this request, is protected from disclosure or is otherwise not subject to production.”
. . .
D. The Warrants at Issue did not Violate the Fourth Amendment’s Particularity Requirements.
P22 Typically, when officers exceed the scope of a search warrant, the remedy is to suppress only items seized outside the scope of the warrant. State v. Petrone, 161 Wis. 2d 530, 548, 468 N.W.2d 676 (1991), overruled on other grounds by State v. Greve, 2004 WI 69, ¶31 n.7, 272 Wis. 2d 444, 681 N.W.2d 479. However, if the search is conducted in “flagrant disregard” of the limitations in the warrant, all items seized—even items within the scope of the warrant—are suppressed. Petrone, 161 Wis. 2d at 548. When a search is conducted with flagrant disregard for the limitations found in the warrant, the Fourth Amendment’s “particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant.” United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988).
P23 “The United States Supreme Court has interpreted the Warrant Clause to be precise and clear, and as requiring only three things: (1) prior authorization by a neutral, detached [judicial officer]; (2) a demonstration upon oath or affirmation that there is probable cause to believe that evidence sought will aid in a particular conviction for a particular offense; and (3) a particularized description of the place to be searched and items to be seized.” State v. Sveum, 2010 WI 92, ¶20, 328 Wis. 2d 369, 787 N.W.2d 317 (citations and quotation marks omitted).
P24 Keeping in mind the Supreme Court’s definition of a general warrant and its interpretation of the Warrant Clause, we measure the warrants at issue against each requirement provided by the Warrant Clause.
1. Prior Authorization by a Neutral, Detached Judicial Officer. …
2. Demonstration by an Oath or Affirmation that there is probable cause to believe that the evidence seized will lead to a particular conviction of a particular offense. …
3. Particularized description of the place to be searched and the items to be seized. … [specific email accounts]
E. The ISPs returned their Electronic Information with an Oath or Afirmation that the Records Produced Complied with the Warrant.
P36 As noted, when Google responded to the warrant, it stated:
To the extent any document provided herein contains information exceeding the scope of your request, protected from disclosure or otherwise not subject to production, if at all, we have redacted such information or removed such data fields.
When Yahoo produced its records, it swore in an affidavit that:
Pursuant to the Federal Stored Communications Act, 18 USC §§ 2701 et. Seq., we have redacted information, including removing certain data fields, that exceeds the scope of this request, is protected from disclosure or is otherwise not subject to production.
. . .
F. More is not required here by the Fourth Amendment simply because the Evidence seized is Electronic Data.
P38 Rindfleisch urges this court to adopt the protocol described in In the Matter of the United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius, 770 F. Supp. 2d 1138 (W.D. Wash. 2011),15 a memorandum order by a federal magistrate judge. In that case, Edward Cunnius was suspected of selling counterfeit Microsoft technology. Id. at 1139. The government applied for a search warrant to search, among other things, all of Cunnius’s electronically stored information. Id. at 1139-1140. The magistrate judge found the requested warrant overbroad because the warrant made no reference to the use of a filtering agent to sort through all of the electronic evidence. Id. at 1141.
15 As of the writing of this opinion, the only cases that have considered In the Matter of the United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius, 770 F. Supp. 2d 1138 (W.D. Wash. 2011), have declined to follow it.
P39 Rindfleisch argues, based on Cunnius, that the Fourth Amendment, as applied to electronic communications, should be read to require an extra layer of protection not historically accorded paper documents, namely an electronic “filter” (the details of which she does not specify) to keep her “personal” or “private” material from being disclosed. She has identified no specific “personal” or “private” material that has been improperly produced. Alternatively, still based on Cunnius, she suggests that a third party should have been appointed by the warrant-issuing judge to review what Google and Yahoo produced. That third person would be the arbiter of what, within the data produced, would be available to the government. We are not persuaded.
