D.Kan.: USMJ’s email warrant denial for lack of PC affirmed, but gov’t can reapply because it has more info

The USMJ’s decision that the email search warrant didn’t show probable cause is not reversed, but it was sufficiently particular. The government can reapply again because it says it has additional information. Courts must balance privacy and the government’s ability to prosecute crime, and the law allows it to “seize first, search later.” “And while this court acknowledges that a judge may have the authority to impose reasonable ex ante instructions, it declines to comment on the ex ante instructions suggested by Judge Waxse.” In the Matter of the Search of Information Associated with Email Addresses Stored at Premises Controlled by the Microsoft Corp., 2016 U.S. Dist. LEXIS 133759 (D.Kan. Sept. 28, 2016):

In applying the law to the warrant at issue, this court concludes it was clearly erroneous or contrary to law for Judge Waxse to find it was not sufficiently particular. The warrant application identified with specificity the target email accounts to be searched and the evidence to be seized in connection with violations of 18 U.S.C. §§ 371 (conspiracy), 1029 (access device fraud), 1030 (computer intrusion), 1343 (wire fraud), and 2319 (copyright infringement), all occurring since September 7, 2008. The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant. The application also included an affidavit detailing the criminal scheme and explaining the relevance of the evidence to the investigation. Rule 41(e)(2) authorizes the “seize first, search second” two-step process, thus allowing the government to obtain all of the data to later search for relevant evidence. And while Rule 41(e)(2) leaves open the question of particularity when the government seeks ESI, the majority of case law relating to the search of an email account has upheld the Government’s ability to obtain the entirety of the account to then search for relevant evidence. Based on the current state of the law, this court finds Judge Waxse’s decision regarding particularity was clearly erroneous or contrary to law.

Although this court finds the warrant sufficiently particular, it agrees with Judge Waxse’s conclusion that the warrant lacked probable cause to support a connection between the investigation and four of the individuals/identifiers listed in the warrant. Judge Waxse noted there was not sufficient probable cause to connect [redacted] to the criminal scheme. The government, in its motion to review, conceded it did not include the proper information to connect those individuals/identifiers to the investigation. To remedy this, the government submitted a new warrant application with its motion to review in which it included new information to establish probable cause for those individuals/identifiers. While this information may satisfy the lack of probable cause, this court may not consider new evidence while sitting in review of a magistrate judge’s order on a non-dispositive pretrial order. As noted above, under Rule 72(a), a district court “must consider timely objections and modify or set aside” any part of a magistrate judge’s order on a non-dispositive pretrial order that is “clearly erroneous or is contrary to law.” The rule does not authorize a district court to consider new evidence when reviewing a magistrate’s decision on a pretrial non-dispositive order. Compare Fed. R. Civ. P. Rule 72(a) with Fed. R. Civ. P. Rule 72(b) (noting that for dispositive motions, a judge of the court may review a magistrate’s recommended disposition de novo and may “accept, reject, or modify” the findings and also “receive further evidence or recommit the matters” to the magistrate with instructions) (emphasis added.) Thus, this court may not consider the newly submitted warrant application and finds there is not sufficient probable cause in the original warrant to connect [redacted] to the investigation. Judge Waxse’s decision was therefore not clearly erroneous or contrary to law and this court affirms his decision to deny the warrant for lack of probable cause for those four individuals/identifiers.

In conclusion, this court acknowledges the careful balance that needs to be achieved between an individual’s right to privacy and the government’s ability to prosecute criminals. The digital era has created new and more complicated Fourth Amendment challenges. File cabinets with folders and documents have been replaced with electronic devices with immense digital storage capabilities, thus the government should be more cognizant of the vast quantities of private material that may be intermingled with relevant evidence.

The law, however, authorizes the government to “seize first, search second” when dealing with ESI. Courts need to ensure that search warrants seeking ESI are sufficiently particular so that officers executing a warrant do not exceed their scope and perform a “general rummaging” of a person’s private information. Based on the current status of case law, this court finds the present warrant is sufficiently particular under the Fourth Amendment. And while this court acknowledges that a judge may have the authority to impose reasonable ex ante instructions, it declines to comment on the ex ante instructions suggested by Judge Waxse. This court, however, will not grant the warrant as is because Judge Waxse’s decision that there was insufficient probable cause as to the four individuals/identifiers was not clearly erroneous or contrary to law. The government may resubmit its warrant application for reconsideration by a magistrate judge.

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