D.Mass.: Email warrant for all material so it can be electronically and specifically searched was reasonable

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.

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