A judge in the E.D.N.Y. may issue a search warrant for emails on Yahoo!’s email server in California under Rule 41 and the Stored Communications Act. The warrant was broad in its particularity, but still constitutional. The warrant lawfully included a requirement of no notice to the account holders after Yahoo! said it would tell the account holder. Denial of notice to the target was not unconstitutional. United States v. Scully, 2015 U.S. Dist. LEXIS 73831 (E.D.N.Y. June 8, 2015) (following In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d 386 (S.D.N.Y. 2014)):
In this regard, the Court agrees with the comprehensive analysis of United States Magistrate Judge Gabriel W. Gorenstein in the Google case set forth in part, as follows:
“[a]mple case authority sanctions some perusal, generally fairly brief, of … documents (seized during an otherwise valid search) . . . in order for the police to perceive the relevance of the documents to crime.” United States v. Mannino, 635 F.2d 110, 115 (2d Cir. 1980) (quoting United States v. Ochs, 595 F.2d 1247, 1257 n. 8 (2d Cir. 1979)); accord Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) (“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.”). As the Second Circuit has noted, “allowing some latitude in this regard simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked ‘drug records.'” United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990). With respect to the execution of search warrants seeking physical evidence, courts “permit[ ] the government to examine paper documents that might otherwise fall outside the scope of a search warrant to make that determination, recognizing that different types of evidence present different tactical issues.” Metter, 860 F. Supp. 2d at 213. In other words, courts have long recognized the practical need for law enforcement to exercise dominion over documents not within the scope of the warrant in order to determine whether they fall within the warrant. Such exercise of dominion essentially amounts to a “seizure” even if the seizure takes place at the premises searched and is only temporary. See, e.g., United States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 958, 181 L. Ed. 2d 911 (2012) (“A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.”) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (internal quotation marks omitted)).
In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search. Thus, “courts developed a more flexible approach to the execution of search warrants for electronic evidence, holding the government to a standard of reasonableness.” Metter, 860 F. Supp. 2d at 214; accord United States v. Graziano, 558 F. Supp. 2d 304, 317 (E.D.N.Y. 2008) (courts have afforded law enforcement “leeway in searching computers for incriminating evidence within the scope of materials specified in the warrant”) (citations omitted); United States v. Scarfo, 180 F. Supp. 2d 572, 578 (D.N.J. 2001) (“Where proof of wrongdoing depends upon documents . . . whose precise nature cannot be known in advance, law enforcement officers must be afforded the leeway to wade through a potential morass of information in the target location to find the particular evidence which is properly specified in the warrant.”); see also United States v. Ganias, 755 F.3d 125, 134-36 (2d Cir. 2014)(“[T]he ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants.”).
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Notably, every case of which we are aware that has entertained a suppression motion relating to the search of an email account has upheld the Government’s ability to obtain the entire contents of the email account to determine which particular emails come within the search warrant. See United States v. Bach, 310 F.3d 1063, 1065 (8th Cir. 2002) (upholding as constitutionally reasonable the seizure of “all of the information” from defendant’s email account where the service provider did not “selectively choose or review the contents of the named account”); United States v. Ayache, 2014 WL 923340, at *2-3 (M.D. Tenn. March 10, 2014)(denying motion to suppress “seizure of all emails in a defendant’s account [ ] where there was probable cause to believe that the email account contained evidence of a crime”); United States v. Deppish, 994 F. Supp. 2d 1211, 1219-21 & n. 37 (D. Kan. 2014) (noting that “nothing in § 2703 precludes the Government from requesting the full content of a specified email account,” and concluding that such a search is not a “general search”); United States v. Taylor, 764 F. Supp. 2d 230, 232, 237 (D. Me. 2011) (upholding search of “all information associated with an identified Microsoft hotmail account”); United States v. Bowen, 689 F. Supp. 2d 675, 682 (S.D.N.Y. 2010) (Fourth Amendment does not require authorities to “ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching”); United States v. McDarrah, 2006 WL 1997638, at *9-10 (S.D.N.Y. July 17, 2006)(denying motion to suppress seizure of “[a]ll stored electronic mail and other stored content information presently contained in” a specified email account), affd, 351 Fed. Appx. 558 (2d Cir. 2009).
Google, Inc., 33 F. Supp. 3d at 390-94.
In sum, the Court concludes that the Yahoo Search Warrants were not overly broad or insufficiently particular in violation of the Fourth Amendment. Further, even if the Yahoo Search Warrants, on their face, violated the Defendant’s Fourth Amendment rights, for reasons explained later, the Court would not grant the desired remedy of suppression.
