W.D.N.Y.: Warrant for everything on a cell phone (“text-messages, videos, photos, records of internet usage and movement tracking information”) dealing with one day and a particular crime at least good under GFE

The government sought a warrant for everything on a cell phone (“text-messages, videos, photos, records of internet usage and movement tracking information”) dealing with one day and a particular crime, so the warrant was not necessarily overbroad. The overbreadth issue is somewhat difficult, so, exercising discretion to look at the good faith exception, the court finds the warrant valid because the warrant is not clearly invalid. United States v. Nguyen, 2014 U.S. Dist. LEXIS 49536 (W.D. N.Y. April 7, 2014):

A warrant may not be sufficiently particularized where it fails to identify the specific crime for which the search is being undertaken. See, e.g., United States v. Rosa, 626 F.3d 56, 64-65 (2d Cir. 2010) (“warrant failed to describe with particularity the evidence sought and, more specifically, to link that evidence to the criminal activity supported by probable cause” where the warrant did not contain any indication of the criminal activity at issue), cert. denied, 132 S. Ct. 1632, 182 L. Ed. 2d 235 (2012); United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (warrant insufficiently particular where it “failed to give any indication of the alleged crime to which the seized documents pertained”); United States v. Zemlyansky, 945 F. Supp. 2d 438, 2013 WL 2151228 at *11, 13 (“the [warrant] does not direct searching officers to seize evidence related to, or concerning, any particular crime or type of crime[;] … there is a difference between a broad search based on a valid warrant and a general search based on a warrant that, on any reasonable interpretation, is silent as to the federal criminal offense for which evidence is sought”); United States v. Cioffi, 668 F. Supp. 2d 385, 396 (E.D.N.Y. 2009) (“[t]he [w]arrant did not, on its face, limit the items to be seized from [defendant’s] personal email account to emails containing evidence of the crimes charged in the indictment or, indeed, any crime at all”).

By contrast, where a warrant identifies the crime at issue and limits the search for evidence relating to that crime, courts generally have found that the particularity requirement has been satisfied. United States v. Burke, 633 F.3d 984, 992 (10th Cir.) (warrant sufficiently particular where, “[a]fter listing the crime officers suspected [defendant] of committing … [,] the warrant called for the officers to search for and seize [particular property] as ‘contraband, evidence, fruits or instrumentalities of said crime(s) … [;] the charge listed on the warrant is the sexual exploitation of a child … [,] [which] is narrow enough to meet the [F]ourth [A]mendment’s requirement by bringing to officers’ attention the purpose of the search”) (internal quotations omitted), cert. denied, 131 S. Ct. 2130, 179 L. Ed. 2d 919 (2011); United States v. Jacobson, 2014 U.S. Dist. LEXIS 33705, 2014 WL 962227, *8 (E.D.N.Y. 2014) (warrants were sufficiently particular “[b]ecause the [warrants] referenced particular crimes and used illustrative lists as a means of limiting the items to be seized”); United States v. Brooks, 2014 U.S. Dist. LEXIS 9651, 2014 WL 292194, *11 (M.D. Fla. 2014) (“[a]lthough not every numbered item in the warrant contained a reference to child pornography or child exploitation, it is abundantly clear that the [officers] were permitted to seize and search the listed items for evidence of possession, creation, or promotion of child pornography and for evidence of child exploitation[;] [t]he scope of the warrant was restricted … and did not permit a free-ranging search”); United States v. Reed, 2013 U.S. Dist. LEXIS 142337, 2013 WL 5503691, *4 (D. Vt. 2013) (“[t]he warrant in this case incorporated a list of evidence to be seized that included a description of the crime … [;] the warrant in this case [thus] provided adequate guidance limiting the scope of the search for evidence of a specific crime”); United States v. Levy, 2013 U.S. Dist. LEXIS 25508, 2013 WL 664712, *9 (S.D.N.Y. 2013) (“[b]y specifically identifying the statutes and conduct that gave rise to the search and seizure, the [warrant] sufficiently identified the suspected crimes for which there was probable cause, and which the materials to be seized evidenced”); United States v. Juarez, 2013 U.S. Dist. LEXIS 11869, 2013 WL 357570, *4 (E.D.N.Y. 2013) (“[t]he warrant here meets the particularity requirement … because it identified particular devices and file types to be searched for evidence of a specific statutory offense”) (internal quotation omitted); United Stats v. Lebovits, 2012 U.S. Dist. LEXIS 189705, 2012 WL 10181099, *23 (E.D.N.Y. 2012) (“[a]lthough references to criminality in truly vague terms may not be sufficiently particular, … any issue in that regard here is overcome by the reference in the warrants to crimes committed by specifically identified individuals”) (internal quotation and citation omitted), report and recommendation adopted, 2014 U.S. Dist. LEXIS 6052, 2014 WL 201495 (E.D.N.Y. 2014). Although “[a] warrant need not necessarily survive a hyper-technical sentence diagraming and comply with the best practices of Strunk & White to satisfy the particularity requirement[,] … it should enable the searcher to reasonably ascertain and identify the things authorized to be seized.” United States v. Burke, 633 F.3d at 992 (internal quotation and citation omitted).

In this case, the warrants specifically identified the alleged crimes under investigation and expressly limited the records (other than subscriber information) to a narrow time period. Further, the warrants delineated the type of evidence sought and identified the property to be searched. The warrants did not, however, explicitly restrict the search and seizure to information relating to the criminal offense identified on the face of the warrant. Under these circumstances, I decline to reach the issue of whether the warrants are sufficiently particular, finding instead that Leon’s good faith exception applies. United States v. De La Torre, 543 F. App’x 827, 829 (10th Cir. 2013) (declining to make a determination as to whether the warrant was facially invalid for want of particularity; “[c]ourts have the discretion to decide a case under Leon’s good faith exception rather than on the merits”).