Monday, November 09, 2009

Lack of Particularity in Email Search Warrant

The 4th Amendment to the U.S. Constitution requires that search warrants be based on probable cause and particularly describe “the place to be searched and the . . . things to be seized.” This post is about a case in which a court had to decide if a warrant issued to search an email account satisfied the 4th Amendment’s particularity requirement.

The case is U.S. v. Cioffi, 2009 WL 3416241 (U.S. District Court for the Eastern District of New York 2009), and it began when FBI Agent Munster applied for a warrant to search Matthew Tannin’s gmail account.

The warrant sought evidence that Tannin was involved in fraud involving “two hedge funds he managed for Bear Stearns Management (`BSAM’). U.S. v. Cioffi, supra. Tannin had been indicted on conspiracy, securities fraud and wire fraud charges some time before the agent sound the warrant:

An affidavit executed by Munster accompanied the application. . . . It set forth Munster's proffered bases for issuing the Warrant.

The Affidavit incorporated . . . the 27-page indictment to demonstrate probable cause that Tannin had committed the charged crimes. To connect those crimes to Tannin's personal email account, the Affidavit alluded to paragraph 41 of the indictment, which excerpted an email sent by Tannin from his personal account to Cioffi on April 22, 2007 (`the April 22nd Email’):

[T]he subprime market looks pretty damn ugly.... If we believe the [CDO report is] ANYWHERE close to accurate I think we should close the funds now. . . . [I]f [the report] is correct then the entire subprime market is toast. . . . If AAA bonds are systemically downgraded then there is simply no way for us to make money-ever. . . .

[T]he April 22nd Email was produced to BSAM's counsel [during] an investigation into the funds' collapse. BSAM turned the email over to . . . the U.S. Attorney's Office in November 2007. Munster opined that Tannin's use of his personal email account, instead of his Bear Stearns account, to discuss work-related matters made it `likely that [he] used THE SUBJECT E-MAIL ACCOUNT to facilitate the charged conspiracy’ because the conspirators `were able to communicate privately by using THE SUBJECT E-MAIL ACCOUNT, in that their communications would not be subject to capture and review by Bear Stearns.’ . . .

In the Affidavit's next section, Munster described the procedures necessary to . . . execute the search. First, he averred that the search would be limited to emails created on or before August 12, 2007, `the day prior to Tannin's retention of private counsel, to prevent the danger of intercepting privileged communications.’ He stated that the nature of electronically stored data required `the searching authorities [to] carefully open and examine all the stored data to determine which of the various files are evidence, fruits, or instrumentalities of the crime,’ that such a procedure `would be impractical to do at Google's offices’ and would instead need to be carried out off-site `in a controlled environment.’ Finally, he averred that `[f]ederal law enforcement officials will review the records sought by the search warrant and will segregate any messages and content constituting evidence of violations of federal criminal law.’

The final paragraph . . . recited Munster's belief, based on the facts set forth, that `there is probable cause to search THE SUBJECT E-MAIL ACCOUNT for evidence of . . . conspiracy to commit. . . securities fraud, . . . and wire fraud. . . .’

U.S. v. Cioffi, supra.

The Magistrate to whom Munster submitted the application signed the warrant, which “authorized a search of `the premises . . . described as electronic mail address `’” U.S. v. Cioffi, supra. The warrant included what the district court judge described as “a boilerplate statement reflecting the magistrate judge’s `satisf[action] that the affidavit(s) . . . establish probable cause to believe the . . . property . . . described is now concealed on the . . . premises above-described and establish grounds for the issuance of this warrant.’” U.S. v. Cioffi, supra. Munster’s affidavit was neither attached to nor incorporated by reference into the warrant. U.S. v. Cioffi, supra.

The warrant authorized Munster (or “any Authorized Officer of the United States”) to

seize from Tannin's email account the items set forth in `Attachment A’. . . . The attachment listed seven categories of `. . . stored information’ . . . [one of which] was described as `all e-mail up through August 12, 2007, including any attachments, and all instant messages, sent by or received by the accounts [sic], whether saved or deleted, whether contained directly in the e-mail account or in a customized ”‘folder.”’ There was no provision limiting the emails to be seized to those containing evidence of the crimes charged in the indictment or, indeed, of any crime at all.

Attachment A also. . . . directed Google employees to `locate . . . and create an exact duplicate’ of all records sought, and to produce the duplicate to the executing officer `in electronic form.’ The attachment did not . . . describe any procedures for the executing officer to follow in searching the account and seizing particular records.

U.S. v. Cioffi, supra. The warrant was served on Google, and it eventually sent a CD containing a copy of the information in Tannin’s account as it existed on November 7 to the prosecutor in Tannin’s case. U.S. v. Cioffi, supra. When prosecutors searched the CD, they found a November 23, 2006 email from Tannin to himself:

The lengthy email is essentially a diary entry, in which Tannin recorded his thoughts about such sundry matters as recent vacations and medical issues; however, several paragraphs were devoted to Tannin's anxiety about work and the state of the market.

U.S. v. Cioffi, supra. When prosecutors told Tannin they intended to use the November 23 email at his trial, he filed a motion to suppress, claiming the search warrant violated the 4th Amendment because it did not “`describe with particularity the materials that would be the proper subject of a search’” of his email account. U.S. v. Cioffi, supra.

The district court judge who ruled on the motion to suppress began his analysis by noting that while courts have yet to adopt a specific standard of particularity for searches of electronic records, there is one type of warrant authorization courts have universally condemned: “`authorization to search for “evidence of a crime,’ that is to say any crime”. U.S. v. Cioffi, supra. Such an authorization violates the 4th Amendment because it permits a search for anything that can be evidence of any kind of crime; the particularity requirement is intended to prevent this kind of fishing expedition by restricting the scope of a search authorized by a warrant to the crime(s) for which the investigating officer has probable cause to believe were committed. Amendment’s particularity requirement is meant to ensure that “`those searches deemed necessary should be as limited as possible.”

After reviewing the warrant, the district court judge found that it “did not, on its face, limit the items to be seized from Tannin's personal email account to emails containing evidence of the crimes charged in the indictment, or, indeed, any crime at all. It was, therefore, unconstitutionally broad”. U.S. v. Cioffi, supra. The prosecution argued that the scope of the warrant was limited by what Agent Munster had included in the affidavit he used to obtain it, but the judge rejected that argument. U.S. v. Cioffi, supra.

In Groh v. Ramirez, 540 U.S. 551 (2004), the U.S. Supreme Court held that affidavits used to obtain a search warrant cannot be used to satisfy the 4th Amendment’s particularity requirement unless they were attached to or otherwise incorporated into the warrant itself. The Groh Court said the “fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.” Groh v. Ramirez, supra. The Cioffi judge found that Groh foreclosed the prosecution’s attempt to use Agent Munster’s affidavit to satisfy the 4th Amendment particularity requirement and save the evidence. U.S. v. Cioffi, supra.

The prosecution then argued that the email was admissible under the inevitable discovery doctrine, “under which unlawfully seized evidence is not suppressed if `the prosecution can establish by a preponderance of the evidence that the information . . . inevitably would have been discovered by lawful means.’” U.S. v. Cioffi, supra (quoting Nix v. Williams, 467 U.S. 431 (1984)). Here’s how the judge described the government’s argument:

The government does not-and could not-argue that the November 23rd Email would have been discovered by lawful means had the Warrant never been executed. Rather, it argues that the email could lawfully be obtained through another, more particularized warrant now that the Warrant has been invalidated.

U.S. v. Cioffi, supra (emphasis in the original). The Cioffi judge didn’t buy this argument. He found there was

little doubt that the government could now obtain a warrant authorizing a search that would yield the November 23rd Email, and that the email would still be found on Google's server. Nevertheless, the government's timing still presents a problem: Having seen the November 23rd Email, the government is now in a position to obtain a warrant with perfect particularity. There is, in other words, no way to purge the taint of its unconstitutionally overbroad search.

U.S. v. Cioffi, supra. I think the judge was right.

As a federal court of appeals noted, the inevitable discovery doctrine “requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.” U.S. v. Eng., 997 F.2d 987 (U.S. Court of Appeals for the Second Circuit 1993) (emphasis in the original). If the warrant to search Tannin’s gmail account had incorporated Agent Munster’s affidavit, it would have only allowed the government to search for evidence of conspiracy to commit securities fraud and wire fraud plus securities fraud and wire fraud. From what we know of the November 23 email (the judge didn’t describe its contents in detail because he was granting the motion to suppress), it seems it would not have fallen within the scope of that warrant and therefore would not have been discovered . . . inevitably.


Anonymous said...

Recently, the EFF compared Cioffi with another recently decided case, In re: United States (D.Ore.). That comparison is worth making. It leads to a simple takeaway:

Stockbrokers win. Ordinary people lose.

Look at what the courts are actually doing—strip away the fancy rhetoric.

In one sense, I can't really fault the Oregon court's decision. 'Cause really, these days, you just don't have privacy in your email unless you protect it with end-to-end encryption. You need to be teaching your students that. Because your students will have an ethical obligation to protect client confidences. And they won't be able to do that without knowing how to encrypt their email.

Susan Brenner said...

I do teach my students about it, I speak about it . . . and I wrote extensively about it on this blog:

I didn't do a post on the Oregon decision because as far as I'm concerned, it's old news. Reach the 2 Warshak posts . . . a some of my law review articles.