E.D.N.Y.: SW for email on devices as evidence of wire fraud permits seizure and search of the devices

Where the crux of a wire fraud is provable by email, a search warrant for defendant’s electronic devices was reasonable because cell phones and computers would likely have email access on them. That was just common sense, and the affiant also showed why he believed it. As to particularity, the warrant excluded cell phones and computers reasonably believed to belong to others, and that made it particular. United States v. Ukhuebor, 2021 U.S. Dist. LEXIS 52814 (E.D. N.Y. Mar. 19, 2021):

… Given that Defendant Ukhuebor was the owner of the 4690 Account and that an email was sent directing the wire transfer be made to the 4690 Account, it was reasonable for the Magistrate Judge to infer that there was a fair probability he was the sender of those emails. Or, in other words, that there was a fair probability that electronic evidence of the crime would be found on Defendant Ukhuebor’s electronic devices.

Special Agent Turczak’s expert opinion further supports the Magistrate Judge’s finding of probable cause. Special Agent Turczak stated that based on his training and experience, he knew that “individuals who engage in wire fraud, bank fraud and money laundering activities commonly use phones, computers, or other electronic devices to access websites used for illegal activity, to communicate with victims and co-conspirators online, and to store records relating to transactions conducted as part of their illegal activities. (Aff. ¶ 35.) Special Agent Turczak’s expert opinion “is an important factor to be considered in making a probable cause determination.” United States v. Benevento, 836 F.2d 60, 71 (2d Cir. 1987), abrogated on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989). To be sure, a government agent’s expert opinion, standing alone, might not be sufficient to establish a link between the item to be searched and the alleged criminal activity. Id. However, when viewed together with the other evidence in the Affidavit, it strengthens the Magistrate Judge’s finding of nexus. See, e.g., United States v. Brown, 676 F. Supp. 2d 220, 224, 228 (S.D.N.Y. 2009) (finding probable cause based on evidence of incriminating phone calls and the law enforcement affiant’s opinion that cellphones contained evidence of criminal activity based on his training and experience, coupled with the “commonsense notion” that an individual engaged in a conspiracy may have evidence of that conspiracy on communication devices used by the individual); cf. United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (finding that expert opinion of law enforcement coupled with unreasonable inferences did not support probable cause determination related to child pornography charges where there were no allegations that the defendant actually gained access to the website at issue, that the sole or principal purpose of the website was the viewing or sharing of child pornography, or that child pornography was downloadable form the site).

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In sum, the Magistrate Judge’s probable cause determination as to the nexus between the alleged crimes and the electronic items was not based on a finding that a cell phone is “inherently suspicious.” … Rather, here, based on common sense, the Magistrate Judge properly determined that there was sufficient nexus between the alleged criminal activities and the electronic items to be searched and seized.”

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