N.D.Cal.: Def’s motion to suppress because of overseizure is denied for moment; parties to confer on what might be suppressible

Defendant argued that the search warrant for documents exceeded the scope of the warrant. Counsel’s declaration was insufficient, but the court recognizes the argument and orders the parties to confer and determine that which they can agree. United States v. Lonich, 2016 U.S. Dist. LEXIS 119372 (N.D. Cal. Sept. 2, 2016):

Because of this complexity, and also because, as discussed infra, the Court disagrees with some of the positions taken by the government in its opposition to the current motion, the Court orders the parties to engage in a meet and confer process as follows: for every seized document that defendant contends is outside the scope of the warrant, defendant may meet his burden by presenting specific facts and arguments to the appropriate government counsel (Trial Team for non-privileged documents, Taint Team for privileged documents). If appropriate, defendant may group documents into categories, such as “documents related to [non-Houseco 101] lawsuit” or “emails related to [non-Houseco] project.” The government shall respond to defendant’s showing, and if the parties are unable to resolve their disputes, the parties shall notify the Court in a letter that also proposes a process for resolving the remaining dispute (e.g., by noticed motion, joint letter brief etc.).

In order to provide the parties with guidance during the meet and confer process, the Court addresses the parties’ arguments with regard to the scope of the warrant and the seven examples selected by the government. “When the defendant challenges the manner in which a search was conducted, we examine the language of the search warrant and ask whether ‘a reasonable officer [would] have interpreted the warrant to permit the search at issue.'” United States v. Johnston, 789 F.3d 934, 941 (9th Cir. 2015) (quoting United States v. Gorman, 104 F.3d 272, 274 (9th Cir. 1996)). Here, as the government previously argued to this Court and as the Court held in its April 15, 2016 order, the language of the warrant authorized the executing officers to seize “[e]vidence of violations [of specific sections of Title 18 of the United States Code referencing a description of the criminal activities], involving any scheme relating to a purchase by 101 Houseco, LLC ….” Id. The names of individuals and entities listed in Attachment B were examples of “[s]uch evidence.”

. . .

The Court next examines each of the examples selected by the government, and finds that a reasonable officer would have interpreted the warrant to permit the seizure of exhibits B and H to the government’s opposition, but that the remaining examples are outside of the scope of the warrant.