Opinion
CRIMINAL ACTION NO. 15-10112-RGS
12-17-2015
UNITED STATES OF AMERICA v. RONALD P. MULCAHEY, and WING ENVIRONMENTAL, INC.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO A WARRANT
This motion seeks to suppress evidence found on computer hard drives seized from defendants' business premises under the authority of a warrant issued by Magistrate Judge Dein. When evidence is seized pursuant to a warrant, the rules governing the disposition of a motion to suppress are straightforward. A search warrant may issue on a showing of probable cause — something more than a suspicion, but something significantly less than proof beyond a reasonable doubt. See Safford v. Unified Sch. Dist. of Redding, 557 U.S. 364, 370-371 (2009) (probable cause is a fluid concept taking its substantive content from the particular circumstances - "the best that can be said generally about the required knowledge component of probable cause . . . is that it raise a 'fair probability,' . . . or a 'substantial chance,' . . . of discovering evidence of criminal activity."). Whether a challenged warrant issued on a sufficient showing of probable cause is a matter of law to be determined by the reviewing court. Beck v. Ohio, 379 U.S. 89, 96 (1964). In reviewing a finding of probable cause, the inquiry is confined to the four corners of the affidavit. Illinois v. Gates, 462 U.S. 213, 239 (1983); United States v. Grant, 218 F.3d 72, 75 (1st Cir. 2000). Because of the strong preference for the "informed and deliberate determinations of magistrates," United States v. Lefkowitz, 285 U.S. 452, 464 (1932), courts reviewing warrants "will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.'" Aguilar v. Texas, 378 U.S. 108, 111 (1964). Where a search is conducted with a warrant, the burden falls to the defendant to prove that the search was unlawful; proof is by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n.14 (1974).
Defendants contend that the warrant at issue in this case was defective in two respects. First, they argue that the warrant as drawn by Magistrate Judge Dein authorized only the seizure of the computers and their hard drives and not the search of their contents (thus requiring a second warrant). Second, they argue that, even if the warrant had authorized a search of the hard drives, in the wake of Riley v. California, 134 S.Ct. 2473 (2014), and its holding that "smart" phones, given the enormous amount of personal data they can store, are sui generis containers, Magistrate Judge Dein should have laid out specific conditions limiting the scope of any off-site review of their contents.
The off-site review and imaging of the contents of the hard drives authorized by Magistrate Judge Dein is permitted by Fed. R. Crim. P. 41(3)(2)(B).
The first argument falls on an examination of the face of the warrant itself. The warrant clearly identifies the property to be searched (and seized) as "[a]ll computers . . . and computer storage devices . . . located at [defendants'' business address]." The second argument has two faults. It fails to acknowledge the significance of the fact that Riley involved a warrantless search. The issue confronting the Court in Riley was whether officers had the right to search the contents of Riley's "smart" phone under the search incident to arrest exception to the Fourth Amendment. The answer was that they did not, but for reasons that have little to do with the warranted search of a computer. In the second instance, the argument fails to identify exactly what the conditions limiting the search might have been or how they would be applied as a practical matter.
The warrant in its return instructions also refers specifically to the "inspection, preservation, and retrieval" of electronic evidence from the seized computer systems. See Warrant, Attachment - Procedures for Seizing Computers and Related Devices ¶ 2. There is no allegation that agents failed to complete the search of the seized computers' hard drives in an expeditious manner. Compare United States v. Ganias, 755 F.3d 125, 140 (2d Cir. 2014).
In two consolidated cases, one from the California Court of Appeals and the other from the District of Massachusetts, the Supreme Court overruled precedent to the contrary, and held that cell phones (c0mputers) are indeed different when it comes to warrantless searches. See Riley v. California, 134 S.Ct. at 2489-2490. While agreeing that the seminal search-incident-to-arrest case, United States v. Robinson, 414 U.S. 218 (1973), and its "categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales [harm to the officers and destruction of evidence] has much force with respect to digital content on cell phones. . . . Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson." Id. at 2484-2485. --------
It is not that the desirability of conditions restricting the search of computers has not occurred to judges reviewing warrant like this one. Judge Kozinski, for one, has valiantly attempted to sketch out "guidance" for magistrates in cases where investigators seek to search massive quantities of electronically stored data. See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178-1180 (9th Cir. 2010) (en banc). His proposals, however, have largely been rejected. See United States v. Mann, 592 F.3d 779, 785 (7th Cir. 2010) (finding the attempt "efficient but overbroad"). In the opinion of the Massachusetts Supreme Judicial Court, "'[a]dvance approval for the particular methods to be used in the forensic examination of the computers and disks is not necessary. . . . Indeed, the judge or officer issuing the search warrant likely does not have the technical expertise to assess the propriety of a particular forensic analysis.'" Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810, 830 (2013), quoting Commonwealth v. McDermott, 448 Mass. 750, 766 (2007); see also United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009) (despite efforts to establish search protocols for computer drives to limit "overseizures," given the capacity of a computer to store and intermingle vast amounts of data, at bottom "there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders"); United States v. Richards, 659 F.3d 527, 539-540 (6th Cir. 2011) (same); United States v. Stabile, 633 F.3d 214, 239-240 & n.13 (3d Cir. 2011) (same).
ORDER
Because neither of defendants'' arguments has traction or support in the case law, the motion to suppress is DENIED. The Clerk may now set the case for trial.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE