S.D.Cal.: Kozinski’s concurrence in CDT on computer searches not binding

Defendant was indicted for conspiracy to ship high tech medical imaging equipment to Iran in violation of the embargo. His overbroad computer search argument under United States v. Comprehensive Drug Testing is rejected, and Kozinski’s concurrence isn’t binding. Safe harbor, yes, but not binding. United States v. Nazemzadeh, 2013 U.S. Dist. LEXIS 18983 (S.D. Cal. February 11, 2013):

In addition to being sufficiently clear, a warrant must also be “legal, that is not overbroad.” SDI Future Health, 568 F.3d at 702. “[T]his means that ‘there [must] be probable cause to seize the particular thing[s] named in the warrant.'” Id. (quoting In re Grand Jury Subpoenas, 926 F.2d at 857). Therefore, “breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” Id. Probable cause means a fair probability, not certainty or even a preponderance of the evidence. Id. (internal citations and quotations omitted.).

A. The Warrant Appropriately Granted Permission to Seize Data and Limited Officers’ Discretion as they Conducted the Offsite Search

Nazemzadeh argues the warrant was overbroad because it failed to set forth specific guidelines regarding the search protocol and allowed officers to seize “vast amounts” of data and keep it indefinitely. He claims that the warrant should have included a specific search methodology or listed a specific word search. Nazemzadeh’s arguments are framed as breadth arguments. However, cases analyzing whether search protocols are required frame the question as one of particularity. See, e.g., United States v. Adjani, 452 F.3d 1140, 1147-50 (9th Cir. 2006) (discussing particularity in response to overbreadth argument).

The parties agree, and are correct, that United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) as applied by United States v. Comprehensive Drug Testing, is the governing standard, 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam) (“CDT”) (“we have updated Tamura to apply to the daunting realities of electronic searches.”). Tamura, provides when probable cause exists, “all items in a set of files may be inspected during a search, provided that sufficiently specific guidelines for identifying the documents sought are provided in the search warrant and are followed by the officers conducting the search. Tamura, at 595. It further provides, “[i]f the need for transporting the documents is known to the officers prior to the search, they may apply for specific authorization for large-scale removal of material, which should be granted by the magistrate issuing the warrant only where on-site sorting is infeasible and no other practical alternative exists.” Id. Even where documents not covered by the warrant are seized and retained by the government, suppression is not necessarily required. See Tamura, at 597.

Although evidence was suppressed in CDT, that case’s application of Tamura does not mandate suppression here. CDT cautioned that “because over-seizing is an inherent part” of the process of searching electronic records, greater vigilance is called for on the part of judicial officers to strike the correct balance between the government’s interest in law enforcement and the right to be free from unlawful searches. CDT at 1177. While compliance with Justice Kozinski’s concurrence in CDT would provide a “safe harbor” for agents, it is not required, as Defendant asserts. CDT, at 1183 (Callahan, J., dissenting) (“The concurrence is not joined by a majority of the en banc panel and accordingly the suggested guidelines are not Ninth Circuit law.”).