The government’s request for a search warrant for Apple to unlock and override passwords on four iPads and two iPhones is denied. The search warrant application lacks probable cause and no search warrant protocol for electronic devices. It amounts to a general search. United States v. Phua, 2015 U.S. Dist. LEXIS 37301 (D.Nev. March 20, 2015). The court previously held the FBI’s internet repair ruse to search their Caesar’s Palace rooms unconstitutional in United States v. Phua, 2015 U.S. Dist. LEXIS 12626 (D.Nev. February 2, 2015) posted here.
Based on these seven paragraphs, the government requested orders in the form of search warrants directing Apple to assist in accessing and copying data from these six devices.
Probable cause is “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). The existence of probable cause is determined by an analysis of the totality of the circumstances surrounding the intrusion. Id. Probable cause does not deal with hard certainties, but with probabilities. Id., at 241. Probable cause to search exists if there is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Id., at 238. The Fourth Amendment requires a nexus between the item to be seized and the criminal behavior. Warden v. Hayden, 387 U.S. 294, 307 (1967).
Special Agent Larson’s statement in Paragraph 8 of the amended affidavit that the eight named Defendants “were involved in operating an illegal gaming activity when they stayed at Villas 8881, 8882, and 8888 at Caesars Palace … during June and July of 2014” is a conclusion, not probable cause. Like the July 9, 2014, warrant I found fatally flawed, it lumps all of the Defendants together. It does not provide factual support for the conclusion. It does not state how the affiant reached his conclusion. It does not describe where the illegal gaming activity occurred. It does not explain what conduct each individual engaged in which amounts to a violation of the law.
Paragraph 10 attests that eight Defendants were indicted for transmission of wagering information, illegal gaming, and aiding and abetting in violation of federal law on July 29, 2014. A court deciding whether to issue a search warrant must determine whether the warrant states probable cause that a crime had been committed, and that the property to be searched will contain evidence of the criminal offenses from the information provided within the four corners of the search warrant application. The fact that the grand jury indicted the Defendants does not state probable cause for issuance of a search warrant. The grand jury found probable cause based on whatever evidence was presented to it. The court has no way of knowing what evidence was submitted to the grand jury and may not simply find that because the grand jury found probable cause to believe the Defendants committed a criminal offense and that the devices listed in the indictment should be forfeited, that probable cause exists to believe the devices contain evidence of the crimes.
Paragraph 11 indicates that one Defendant pled guilty to a felony charge of transmission of wagering information, four Defendants pled guilty to a Class A misdemeanor of accessory after the fact to transmission of wagering information, and the case against a sixth Defendant was dismissed. The affidavit does not state who admitted to doing what, whether any of the Defendants who pled guilty implicated the Phuas in illegal gaming activity, where the illegal gambling business was being conducted, how the illegal gaming activity was being conducted, or the role played by each individual charged. The affidavit contains no facts indicating the six devices recovered from Villa 8881 and 8888 were used to commit the enumerated offenses, or what facts law enforcement has to believe the devices may contain evidence of the enumerated offenses.
Second, the applications and proposed search warrants do not contain a search warrant protocol for searching for and seizing only evidence of the enumerated criminal offenses. The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one particularly describing the place to be searched and the persons or things to be seized. Maryland v. Garrison, 480 U.S. 79, 84 (1987). The purpose of the particularity requirement is to prevent general searches. Id. By limiting the authorization to search the specific areas and things for which there is probable cause to search, the particularity requirement ensures that the search will be carefully tailored to its justifications, and will not become a wide-ranging, exploratory search the Fourth Amendment prohibits. The scope of a lawful search is defined by the object of the search. Id. The test is an objective one: would a reasonable officer have interpreted the warrant to permit the search at issue. United States v. Gorman, 104 F. 3d 272, 274 (9th Cir. 1996).
Search warrants must be specific. United States v. Hill, 459 F.3d 966, 973 (9th Cir. 2006). “Specificity has two aspects: particularity and breadth. Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” Id. The description of items need only be reasonably specific, rather than elaborately detailed. Id. In determining whether a warrant is sufficiently particular, the Ninth Circuit considers one or more of the following factors: (1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant set out objective standards by which the executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued. Id.
The purpose of the Fourth Amendment’s particularity requirement is to make general searches impossible and prevent “exploratory rummaging in a person’s belongings.” Anderson v. Maryland, 427 U.S. 463, 480 (1976). The need to prevent general exploratory rummaging of a person’s belongings is particularly acute in document searches because, unlike requests for other tangibles, document searches tend to involve broad disclosures of the intimacy of private lives, thoughts, and transactions. United States v. Washington, 797 F.2d 1461, 1468 (9th Cir. 1986) (internal citations and quotations omitted). However, the Ninth Circuit has often recognized a legitimate law enforcement need to scoop up large quantities of data and sift through it carefully for concealed or disguised pieces of evidence. See, e.g., United States v. Hill, 459 F.3d 966 (9th Cir. 2006).
There is a well-developed body of Fourth Amendment law addressing the search and seizure of large quantities of materials to review and sort the material for items within the scope of probable cause underlying warrants. For example, in Anderson v. Maryland, 427 U.S. at 482 n.11, the Supreme Court recognized that “in searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”
The Ninth Circuit has exhaustively addressed search warrants for computer and electronically stored information in a series of decisions involving grand jury investigations into illegal steroid use by Major League baseball players. Three published decisions culminated in an en banc decision in United States v. Comprehensive Drug Testing, Inc., 621 F. 3d 1162 (9th Cir. 2010) (“CDT III”). There, the Ninth Circuit recognized that data individuals used to keep in the file cabinets in physical facilities are now usually stored electronically, and law enforcement faces many challenges in retrieving electronically stored information. Id., at 1175. “Electronic storage facilities intermingle data, making them difficult to retrieve without a thorough understanding of the filing and classification systems used—something that can often only be determined by closely analyzing the data in a controlled environment.” Id. Because of these challenges, the Ninth Circuit recognized that law enforcement’s legitimate need to seize large quantities of data is an inherent part of the electronic search process. Id., at 1177. However, the legitimate need of law enforcement for authorization to examine large quantities of electronic records “creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” Id., at 1176.
To address these concerns, CDT III updated its earlier decision in United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) “to apply to the daunting realities of electronic searches.” Id., at 1177. Tamura preceded the dawn of the information age and involved the seizure of several boxes and dozens of file drawers of paper documents to be stored off site for documents the search warrant authorized later. CDT III made it clear that the procedural safeguards outlined in the Tamura opinion have “provided a workable framework for almost three decades” and should be applied to the realities of electronic searches. Specifically, the Court of Appeals reiterated that wholesale seizure of voluminous documents to be sorted out for documents a search warrant authorizes the government to seize may sometimes be necessary. Although often necessary, the Ninth Circuit continues to disapprove of the wholesale seizure of documents, particularly where the government fails to return materials that were not the object of the search once they have been segregated. Id.
With respect to electronically stored information, CDT III called upon magistrate judges issuing search warrants to apply Tamura procedures to electronically stored information “to maintain the privacy of materials that are intermingled with seizeable materials, and to avoid turning a limited search for particular information into a general search of office file systems in computer databases.” Id., at 1170. Because of the unique problems inherent in the electronic search process, judicial officers should exercise greater diligence “in striking the right balance between the government’s interests in law enforcement and the right of individuals to be free from unreasonable searches and seizures.” Id., at 1177. The Ninth Circuit concluded that “the process of segregating electronic data that is seizeable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.” Id.
The court will not approve a search warrant for electronically stored information that does not contain an appropriate protocol delineating what procedures will be followed to address these Fourth Amendment issues. A protocol for forensic review of a device that stores data electronically must make reasonable efforts to use methods and procedures that will locate and expose those categories of files, documents, or other electronically stored information that are identified with particularity in the warrant, while minimizing exposure or examination of irrelevant, privileged, or confidential files to the extent reasonably practicable.
