Monday, October 26, 2015

Burglary, Instagram and Search Protocols

This post examines an opinion a U.S. District Court Judge who sits in the U.S. District Court for the District of New Jersey recently issued in a criminal case:  U.S. v. Gatson, 2015 WL 5920931 (2014).  He begins the opinion by explaining that “[i]n a thirteen-count indictment, the Government charges Daniel Gatson with crimes arising out of an alleged scheme to burglarize homes and convert stolen goods into cash.” U.S. v. Gatson, supra.  
The judge does not include a detailed description of the events that, on July 17, 2014, led the Grand Jury for the District of New Jersey’s charging Gatson
in the Fourteen–Count Second Superseding Indictment (the `SSI’) with conspiracy to transport and receive stolen property, in violation of 18 U.S. Code § 371, and interstate transport of stolen property, in violation of 18 U.S. Code §§ 22314.
U.S. v. Gatson, supra.  An article posted on a local website outlines the events that led to the indictment and to Gatson’s indictment on the charges noted above:
Two months into a string of burglaries in well-to-do neighborhoods across four states, investigators caught a lucky break when an unfamiliar cellphone was discovered inside a Colts Neck home after the theft of $16,000 in jewelry.

Among the photographs stored on the device was a `selfie’ of Curtis Dent Jr., a 34-year-old convicted robber from Roselle, snapped as he posed in front of a mirror.

More important to the investigation was the phone’s contact list. It not only provided cellphone numbers for Dent’s associates, but mining telephone company records enabled investigators to construct a high-tech road map that traced the movements of the cellphones used by the man the authorities believed to be the ringleader, Daniel `Tokyo’ Gatson, whom prosecutors have called one of Bergen County’s most prolific burglars.

The break helped investigators dismantle what they allege was a serial burglary ring, the likes of which has not been seen in this area since the days of the James Bond Gang, a crew known for its lightning hits and stealthy countermeasures. 
Peter J. Sampson, TheHigh-tech Arrest of a Notorious N.J. Thief, (March 3, 2014). You can read more about the burglary ring and the prosecution in the stories you can find here and here.
As the judge notes at the beginning of the opinion, he is using the opinion to rule on a number of issues Gatson raised in his “pretrial Omnibus Motion.” U.S. v. Gatson, supra.  As a result, the judge’s opinion is very long – much too long to review in a post.  Instead, this post examines the judge’s rulings on three issues:  the government’s searching Gatson’s “electronic devices”; government agents’ becoming “friends” with him on Instagram; and their searching his email accounts. U.S. v. Gatson, supra.
In his Omnibus Motion, Gatson argued that the
search warrants for the searches of his electronic devices were deficient because they did not include a `sufficient search protocol.’ . . . Thus, he argues that those search warrants did not satisfy either the probable cause or particularity requirements of the Fourth Amendment.  Gatson does not articulate which search warrants were problematic or what evidence he seeks to suppress.

However, the Court assumes that he seeks to suppress the . . . Samsung Galaxy, the Sprint cell phone recovered from his residence in North Bergen, New Jersey, the Dell laptop computer recovered from the Georgia Residence, and the Samsung tablet computer recovered from the Georgia Residence.
U.S. v. Gatson, supra.
The judge began his analysis of Gatson’s search protocol argument by explaining that
[t]he `search protocol’ language cited by Gatson comes from a case where a magistrate judge in the District of Columbia denied the government's application to obtain a search warrant and prophylactically sought to prevent the over seizure of data by the government. In the Matter of the Search of Apple IPhone, IMEI013888003738427,2014 WL 1239702 (U.S. District Court for the District of Columbia March 26, 2014). Conversely, Gatson attempts to suppress evidence that was obtained under search warrants that were previously reviewed and approved by federal magistrates in two different jurisdictions.

Further, the Third Circuit has previously declined to adopt any particular procedures governing the search of computers. U.S. v. Himmelreich, 265 F. App'x 100 (U.S. Court of Appeals for the 3d Circuit 2008) (rejecting the defense's suggestion that the court adopt a procedure requiring law enforcement authorities to provide clear techniques and limitations for searches involving computers).

Instead, the Third Circuit, like many other federal courts, has endorsed a more measured, fact-sensitive approach when evaluating the proper scope of computer-related searches. U.S. v. Stabile, 633 F.3d 219 (U.S. Court of Appeals for the 3rd Circuit 3d 2011) (holding that `the plain view doctrine applies to the seizure of evidence during searches of computer files, but the exact confines of the doctrine will vary from case to case in a common-sense, fact-intensive manner’); U.S. v. Richards, 659 F.3d 527 (U.S. Court of Appeals for the 6th Circuit 2011) (`the majority of federal courts have eschewed the use of a specific search protocol and, instead, have employed the 4th Amendment's bedrock principle of reasonableness on a case-by-case basis’).
U.S. v. Gatson, supra.
The judge then took up what happened in this case, noting that,
[h]ere, on October 11, 2013, federal agents seized a Dell laptop computer and a Samsung tablet computer from Gatson's Georgia Residence pursuant to a validly issued warrant. Law enforcement agents subsequently obtained a judicially authorized search warrant to search these two devices. . . . In the affidavit supporting that application, Special Agent Guerra noted that information obtained during the investigation indicated that Gatson had used an Instagram account to display photographs of himself with large amounts of cash and jewelry, which were quite possibly the proceeds from the specified federal offenses. . . .

The affidavit also noted that during the execution of the initial search warrant of Gatson's Georgia Residence, agents recovered what appeared to be printed records of internet searches for homes in affluent neighborhoods in Georgia. Georgia. . . .Thus, the agent provided a fully articulated basis to support the search of the computers. The agent also narrowly tailored the search for evidence sought from these computers, as set forth in an Attachment A and reviewed and approved by a magistrate in Georgia. . . .

Additionally as described above, federal agents seized Gatson's Samsung Galaxy during his arrest on October 11, 2013. That same day, law enforcement officers seized a Sprint cell phone from his residence in North Bergen, New Jersey, pursuant to a judicially-authorized search warrant. Both cell phones were later searched pursuant to a validly issued warrant by a magistrate judge in New Jersey. The common affidavit supporting the search of both phones set forth the probable cause justifying the search of these phones, including references to wiretapped conversations wherein Gatson and his co-conspirators used phones in furtherance of their criminal activity. . . . In particular, the affidavit noted that a search of the seized cell phones might yield information regarding the identities and contact information of coconspirators as well as messages related to the specified federal offenses. . . .
U.S. v. Gatson, supra.  As Rule 41(d)(1) of the Federal Rules of Criminal Procedure explains, a federal agent who requests a warrant to search a particular place and seize evidence found there must demonstrate that he/she has probable cause to believe evidence of a crime will be found in the place to be searched and/or the thing(s) to be seized. The agent submits an application for the warrant and can use a written affidavit and/or live testimony to convince the judge that probable cause exists. 
The judge therefore found that the
search warrants related for the searches of Gatson's electronic devices were supported by probable cause and were sufficiently particular without the inclusion of a `search protocol.’ Gatson's motion to suppress those searches will be denied.
U.S. v. Gatson, supra.
The judge then took up the Instagram issue, noting that
Gatson next challenges evidence obtained by law enforcement during visits to his Instagram webpages. Gatson argues that there was no probable cause to search and seize items in his Instagram account, and he attacks as flawed the `government application’ for that information.
U.S. v. Gatson, supra.  He went on to explain that,
[a]s part of their investigation into Gatson and other co-conspirators, law enforcement officers used an undercover account to become Instagram `friends’ with Gatson. Gatson accepted the request to become friends. As a result, law enforcement officers were able to view photos and other information Gatson posted to his Instagram account. No search warrant is required for the consensual sharing of this type of information. See generally U.S. v. Meregildo, 883 F.Supp.2d 523 (U.S. District Court for the Southern District of New York 2012). Gatson's motion to suppress the evidence obtained through the undercover account will be denied.
U.S. v. Gatson, supra. 
The District Court Judge then took Gatson’s argument that “the Government's search of his email accounts on his electronic devices violated the 4th Amendment.” U.S. v. Gatson, supra.  After noting that he was “unconvinced” by Gatson’s argument, the judge explained that in the
affidavit to search the Samsung Galaxy cell phone recovered from Gatson's hotel room and the Sprint cell phone recovered from his North Bergen residence, the Government sought permission to search email addresses and messages related to the specified federal offenses. . . .  A federal magistrate in New Jersey reviewed the application and gave permission for the government to search for `[a]ny text messages, email messages, chats, multimedia messages installed applications, or other electronic communications.’ . . . There is thus no basis to suppress the results of these searches.

Likewise, the Government sought and obtained permission to review electronic records in various forms related to both computers recovered at Gatson's residence in Georgia. . . . A federal magistrate in Georgia reviewed the application and gave permission for the government to search all electronic records sought, including, but not limited to those evidencing the use of either computer `to communicate with email servers, Instagram and Twitter accounts, the Pinger application, Facebook, Inc., and other social media sites.’ . . . There is likewise no basis to suppress the results of these searches.
Accordingly, Gatson's application to suppress evidence obtained from the search of his emails on the electronic devices will be denied.
U.S. v. Gatson, supra. 

The judge therefore granted some of the other requests in the Omnibus Motion and denied others.  U.S. v. Gatson, supra.  As far as I can tell, Gatson has not yet gone to trial.  This judge issued an opinion on October 9, 2015, in which he rejected another pretrial motion filed by Gatson.  U.S. v. Gatson, 2015 WL 5920931 (U.S. District Court for the District of New Jersey 2015).

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