N.D.Ill.: Court approves SW for electronic devices believed connected to counterfeiting offenses in SW for home

“The government has presented an application for a warrant to search a townhome for evidence of trafficking in counterfeit United States currency. Among the items identified by the government for search and seizure are electronic devices located in the premises. More specifically, the government’s application seeks to seize electronic devices in the premises that are connected to the subject offense or in the possession of the target of the offense. The Court has determined that this limitation on the scope of the seizure of electronic devices is consistent with the Supreme Court’s Fourth Amendment jurisprudence, and in particular, Riley v. California, …, and thus has authorized the warrant. The Court issues this opinion to explain the reasons why it has authorized a warrant with this limitation.” In re Search Warrant Application for the Search of a Townhome Unit, 2020 U.S. Dist. LEXIS 68652 (N.D. Ill. Apr. 20, 2020):

The Court finds that the warrant at issue here is not overbroad because it limits the seizure of electronic devices to those that are linked to the offense or the perpetrator of the offense. First, there is probable cause to seize and search electronic devices because the government’s affidavit included facts demonstrating that the suspect had likely used an electronic device to access a website in order to purchase the counterfeit currency. Second, the government has limited the electronic devices that it can search and seize, and thus the enhanced privacy considerations discussed in Riley are satisfied. Specifically, the warrant authorizes seizure of electronic devices that are “reasonably believed to be possessed or used by [the suspect] or linked to the Subject Offenses[.]” As discussed above, this is a reasonable limitation on the scope of the warrant because the search and seizure is directly tied to the offense or its perpetrator. See Riley, 573 U.S. at 381 (“As the text of [the Fourth Amendment] makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness.”) (internal quotations omitted); see Matter of Residence in Oakland, California, 354 F. Supp. 3d 1010, 1014 (N.D. Cal. 2019) (search warrant for electronic devices must be limited to “devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit”). Once seized, law enforcement can then search the contents of those electronic devices for data related to the offense and specifically identified in Attachment B of the warrant. These items identified in Attachment B include documents, receipts, notes, ledgers, photographs, and other records relating to counterfeit currency. Under this formulation, law enforcement cannot remove and search every electronic device found in the premises.

As the Supreme Court recognized, “[a]s technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Carpenter, 138 S.Ct at 2214 (internal quotation marks and citations omitted). For the reasons stated above, the search and seizure of all electronic devices, which include cell phones, as a result of its mere presence inside a premises to be searched is no longer permissible post-Riley. The limitation on electronic device seizures in this warrant, however, protects the privacy interests of unrelated parties to the offense, ensures that the warrant satisfies the particularity requirement of the Fourth Amendment, and that the seizure is supported by probable cause. See Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (“This particularity requirement protects person against the government’s indiscriminate rummaging through their property.”).

This is not to say that the government can never demonstrate that a seizure of all electronic devices is warranted. Situations, such as when the perpetrator of the offense lives alone or when probable cause demonstrates that all individuals in a premises were involved in an offense, could support a broader warrant for the seizure of all electronic devices. See, e.g., United States v. Taylor, 2019 U.S. Dist. LEXIS 10285, 2019 WL 281547 at*8 (N.D. Cal. Jan 22, 2019) (warrant provided probable cause that both defendant and his wife were involved in tax fraud, and thus warrant for seizure of electronic devices was not overbroad). Like any warrant application, the government must provide specific probable cause to support a search and seizure for the items it seeks. The Court recognizes that there are challenges for law enforcement in identifying the specific devices within a residence that are connected to the offense or its perpetrator. However, these challenges can be overcome by law enforcement through the use of additional investigative techniques, such as pre-search surveillance focused on the devices used in the crime, dialing known phone numbers of the perpetrators while in the premises, or voluntary interviews of individuals present in the residence at the time of the search. And once the electronic devices subject to the warrant are seized, law enforcement is permitted to search the entirety of the device for evidence of the crime as described in the warrant. United States v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018).

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