D.P.R.: When emails are searched, a taint team isn’t always required; a large amount may be seized for later search

Ex ante search restrictions are rare. The warrant process is concerned with what may be searched for and seized, not necessarily how, and a taint teams isn’t always required. The officers could seize a large number of emails and then do a word or date search to find what is particularly described. The plain view doctrine may thus apply. United States v. Keleher, 2021 U.S. Dist. LEXIS 17345 (D.P.R. Jan. 28, 2021):

In addition, courts in this circuit recognize the rarity of ex ante search restrictions in a warrant. Warrants “rarely” “prescribe methods of recovery or tests to be performed.” United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999). “The warrant process is primarily concerned with identifying what may be searched or seized—not how ….” Id. (emphasis in original). “[I]n the absence of a specific applicable requirement, 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.'” Tsarnaev, 53 F. Supp. 3d at 464 (emphasis added) (quoting Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979)).

A commonsense and realistic interpretation of the probable cause affidavits in this case, United States v. Ventresca, 380 U.S. 102, 108-09, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); United States v. Fagan, 577 F.3d 10, 13 (1st Cir. 2009), leads the Court to conclude that, in a single sentence in its probable cause affidavits, the government did not commit itself to a rare and unnecessary restriction on its authority to search. The law enforcement officers executing the warrants, moreover, were not required to interpret the warrants narrowly. United States v. Daubmann, 497 F. Supp. 2d 60, 62 (D. Mass. 2007). As such, the materials before the Court provide no basis for concluding that the taint team or investigating agents violated the taint team provision in the probable cause affidavits.

Keleher separately argues that the law enforcement officers were not permitted by the warrants to look at the emails in this case because the persons involved in these emails were not part of the schemes alleged in the warrants. This argument is easily dispensed.

The warrants here authorized the government to seize emails and data “that constitute[] . . . evidence … of violations of Title 18, United States Code, Sections 666, 371, 1341, 1343, and 1346, those violations involving Julia B. Keleher, [other named persons], as well as other individuals/corporations.” (Docket No. 72, Ex. 1 at p. 30 (emphasis added); id., Ex. 2 at p. 30 (emphasis added).) The warrants did not restrict the government to looking at emails involving persons named in the probable cause affidavits. Just as officers looking for documents in a filing cabinet may briefly examine each document to see if it is seizable pursuant to a warrant, the officers here could examine each email to determine if it was seizable pursuant to the warrants. Andresen, 427 U.S. at 482 n.11; Giannetta, 909 F.2d at 577; Taylor, 764 F. Supp. 2d at 237.

“[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (internal quotation marks omitted). The “general touchstone of reasonableness … governs the method of execution of the warrant.” United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998) (citation omitted). No evidentiary hearing is necessary to conclude that the officers’ actions were reasonable.

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