The email search warrant produced 430,081 items, and the database provided then had to be searched. That complied with the terms of the search warrant and the Fourth Amendment because it still provided particularity. United States v. Aboshady, 2017 U.S. Dist. LEXIS 167686 (D. Mass. Oct. 11, 2017):
Similar to the circumstances in Upham, the seizure of all electronic data associated with the e-mail accounts and the subsequent uploading, application of search terms, and search of the data “was about the narrowest definable search and seizure reasonably likely to obtain” the targeted information. U.S. v. Upham, 168 F.3d at 535. As explained in Upham:
A sufficient chance of finding some needles in the computer haystack was established by the probable-cause showing in the warrant application; and a search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for a weapon or drugs.
Id. 168 F.3d at 535. A search of the 430,081 retrieved documents for the information in the Records and Data categories could not, as a practical matter, be conducted without uploading the documents into a searchable database. See id. (noting “that the mechanics of the search for images later performed off site could not readily have been done on the spot”). Furthermore, notwithstanding the defendant’s overbreadth argument, the seizure and receipt of documents beyond those categorized in the Records and Data categories in the warrants does not contravene the Fourth Amendment’s particularity requirement. See id. In addition, the Record and Data categories in the Gmail and AOL warrants provide sufficient information to restrict, guide, and control the agents choosing the search terms and conducting the filtering. See U.S. v. Kanodia, 2016 U.S. Dist. LEXIS 73395, 2016 WL 3166370, at *5-6.
The defendant also argues that the government’s unreasonable delay in conducting the search necessitates production of the search terms and the review protocols as material to a motion to suppress. “The warrant process,” however, “is primarily concerned with identifying what may be searched or seized—not how—and whether there is sufficient cause for the invasion of privacy thus entailed.” U.S. v. Upham, 168 F.3d at 537 (emphasis omitted and additional emphasis supplied); see also U.S. v. Tsarnaev, 53 F.Supp. 3d 450, 464 (D. Mass. 2014). (“it is ‘generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant'”) (quoting Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979)). Rule 41(e)(2)(A) limits the 14-day “execution period to the actual execution of the warrant and the on-site activity.” Fed.R.Crim.P. 41, Advisory Committee Note to 2009 Amendment. The rule rejects a presumptive, uniform time period to conduct the off-site review and “a substantial amount of time can be involved in the forensic imaging and review of information.” Id. The Fourth Amendment also “‘contains no requirements about when the search or seizure is to occur or the duration.'” U.S. v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005). That said, in the event there is a showing of prejudice to the defendant resulting from the delay in conducting a search, the delay may render evidence seized inadmissible. See id.; see also U.S. v. Jarmin, 847 F.3d 259, 266-67 (5th Cir. 2017) (citing Syphers, 426 F.3d at 469).
Here, the production of the search terms, the review protocols, the documents regarding a taint team, and the documents concerning the search method are not likely to produce relevant information that could be subject to a motion to suppress based on the timing of the review and the prejudice, if any, to the defendant. For reasons also set out by the government (Docket Entry # 94, pp. 6, 17-20), the defendant’s argument is not convincing.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)