D.Mass.: PC shown for white collar email search by declaration of investigator that email is commonly used

A federal search warrant issued by a USMJ in the District if Massachusetts could be served on an email provider in Florida under § 2703(b)(1)(A). The affiant’s statement that white collar defendants frequently use email to communicate was sufficient to show probable cause and nexus, despite defendant’s argument of a nexus and a lack of a particularized showing. The lack of a search protocol in the warrant didn’t make it an unreasonable search. United States v. Kanodia, 2016 U.S. Dist. LEXIS 73395 (D.Mass. June 6, 2016):

He characterizes the affidavit as setting forth only a “bare suspicion” that the targeted e-mail account contained evidence of the alleged crimes and accuses the government of embarking on a “fishing expedition” to find incriminating evidence against him. He contends that a general declaration that “co-conspirators frequently use e-mail to communicate regarding matters relating to the conspiracy” and the baseless allegation that he e-mailed wire instructions to Ahmed after Ahmed sold his interests in Cooper Tire do not establish the requisite nexus. He claims that the e-mail with the wire instructions was not related to Ahmed’s interests in Cooper Tire and there is no evidence that he used e-mail to communicate with Ahmed before or during the sales of those interests.

As a result, defendant denies that there was a substantial basis to conclude that all of the e-mail communications and data in the account, even those that fell outside the period of the alleged conspiracy, contained evidence of the charged crimes. He concludes that the affidavit failed to establish probable cause and seeks to suppress all evidence obtained pursuant to the warrant.

The government responds that there was ample evidence and a substantial basis for Magistrate Judge Bowler to find probable cause to believe that the e-mail account contained evidence of the insider trading scheme. It maintains that the affidavit established the nexus element through its identification of the August, 2013 e-mail which Kanodia sent to Ahmed shortly after Ahmed sold his interests in Cooper Tire.

The government contends that the e-mail with the wire instructions “could not have been more on point” because it 1) showed that Kanodia directed Ahmed to share the profits of his illegal trades, 2) illustrated how Kanodia benefitted from the insider trading scheme and 3) shed light on the relationship between Kanodia and Ahmed. It challenges Kanodia’s suggestion that “a single e-mail is not sufficient [for] the probable cause finding” as unsupported by the caselaw and inconsistent with its case agent’s training and experience that co-conspirators often use e-mail in furtherance of the conspiracy.

. . .

Kanodia concedes that Rule 41(e)(2)(B) authorizes the “later review of the media or information consistent with the warrant” but maintains that the two-step procedure nevertheless violated the Fourth Amendment because it did not expressly contain a minimization protocol. He submits that the Upham decision is outdated because it was decided over 15 years ago when technology was less advanced and e-mail accounts contained less information.

The Court finds defendant’s arguments unavailing. In overseeing the warrant process, the Court is “primarily concerned with identifying what may be searched or seized — not how”, see Upham, 168 F.3d at 537, and generally will not interfere with the discretion of law enforcement in determining “how best to proceed with the performance of a search authorized by warrant.” United States v. Tsarnaev, 53 F. Supp. 3d 450, 464 (D. Mass. 2014)(citing Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979) and Upham).

The Upham decision remains the law in this Circuit and the Court declines to depart from its principles. In Upham, the First Circuit upheld the two-step procedure of initially seizing all materials contained in electronic storage media, including items that were not subject to the search warrant, and searching the seized materials later for items that fell within the scope of the warrant. Id. at 535. The Upham court held that the two-step procedure did not violate the Fourth Amendment because 1) the showing of probable cause in the warrant application indicated that there was “a sufficient chance of finding some needles in the computer haystack”, 2) the search of the electronic storage media was not inherently more intrusive than the physical search of an entire house and 3) the initial seizure of all materials and subsequent search for relevant materials was justified in light of the impracticality of law enforcement agents reviewing all of the information at the time of warrant execution. Id.