This post examines an opinion recently issued by a U.S. District Court Judge who sits in the District Court for the District Court of Utah: U.S. v. Vafeades, 2015 WL 5675279 (2015). According to the court’s docket, Timothy Jay
Vafeades was indicted on federal charges on March 26 of 2014. U.S. v.
Vafeades, supra. I cannot find the indictment online, but a Huffington Post story on the case says
the charges “against him include kidnapping, transportation for illegal sexual
activity and possession of child pornography, and they could bring a life
sentence if he is convicted.”
If you would like to read more about the facts in this very
bizarre case, you can check out the news stories you can find here, here, and
here. You might want to check them out -- they put the charges into context.
The District Court Judge begins his opinion by explaining
that Vafeades moved to
suppress evidence obtained from a
search warrant executed on electronic devices seized from him following his
arrest on November 26, 2013. The United States filed its opposition on
June 5, 2015. As directed, both parties submitted their positions in the
form of draft orders. Vafeades contends that the search warrant
lacks particularity, and therefore, authorized an overly broad search of his
electronic devices. Vafeades also argues that the search warrant failed to
sufficiently specify or restrict the search of his electronic devices. But
Vafeades provides no briefed challenge to the affidavit, application or the
actual search procedure used.
U.S. v. Vafeades,
supra. Vafeades’ motion was made under the Fourth Amendment, which outlaws
“unreasonable” searches and seizures. U.S.
v. Vafeades, supra.
The judge went on to explain that
Minnesota State Patrol troopers
arrested Vafeades on November 26, 2013, at the Red River Weigh Station in Moorehead,
Minnesota. After his arrest, an Apple iPhone, an Apple Mac Book Pro,
and five external hard drives were seized from Vafeades. On February
24, 2014, FBI Special Agent Daniel P. Horan submitted a sealed and sworn
application and affidavit for a search warrant, and a search warrant and two
attachments to Magistrate Judge Dustin Pead. Magistrate Judge Pead
issued the sealed search warrant and its attachments the same day.
Based on the facts set forth in his
affidavit, SA Horan stated that there was probable cause to believe evidence of
five federal crimes—transportation, possession, receipt or distribution of
child pornography; kidnapping; and transportation for illegal sexual
activity—would be found on Vafeades's electronic devices. Attachment A to
the search warrant lists the electronic devices referenced above as the items
to be searched, along with the devices' serial numbers, and notes that the
electronic devices were in the possession of the Clay County Sheriff's Office
in Moorehead, Minnesota. Attachment B lists the items to be seized and in
most paragraphs includes references to definitions related to child
pornography; references to the federal statutes for kidnapping and for
transportation for illegal sexual activity are found in paragraph 2 of Attachment
B.
U.S. v. Vafeades,
supra. If you would like to see an application for a federal search warrant with Attachments, you can find one here.
The judge goes on to explain what happened next:
SA Horan submitted the electronic
devices to the Intermountain West Regional Computer Forensics Laboratory
(IWRCFL) on March 5, 2014, along with the IWRCFL's service request
form. SA Horan attached the search warrant and his affidavit to the IWRCFL
service request form. In the explanation portion of the service
request form, SA Horan wrote: `Please image and search for child porn and
evidence of kidnapping. I will help review to find evidence.’ The search
warrant was executed on March 5, 2014, at the IWRCFL. A search of
Vafeades's cell phone revealed text messages between Vafeades and Victim A, and
photographs of Victim A and Victim B. A search of Vafeades's computer and hard
drives revealed hundreds of images and videos of possible child pornography, as
well as additional photos of the victims in this case.
U.S. v. Vafeades,
supra.
The judge then began his analysis of Vafeades’ motion to
suppress, explaining that the
Fourth Amendment ensures `[t]he right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures’ and that `no [w]arrants shall issue
but upon probable cause . . . and particularly describing the place to be
searched, and the persons or things to be seized.’ Warrants that contain
no limitation, for example, warrants authorizing the search of all information
and data, or all electronic devices, have been held invalid. However, `warrants
may pass the particularity test if they limit their scope either ‘to evidence
of specific federal crimes or [to] specific types of material.’
As the Tenth Circuit has noted, `efforts
to apply the Fourth Amendment's particularity requirement to computer searches
are still relatively new.’ Thus, the vast array of items that can be stored on
personal computers `makes the particularity requirement that much more
important.’ While the particularity requirement applies equally to
searches of electronic devices such as computers and cell phones, the
requirement has never `been understood to demand a warrant of technical
precision or elaborate detail, but only practical limitations affording
reasonable specificity.’
`While officers must be clear as to
what it is they are seeking on the computer and conduct the search in a way
that avoids searching files of types not identified in the warrant, a computer
search may be as extensive as reasonably required to locate the items described
in the warrant based on probable cause.’ Because of the vast array of
one's personal information stored in computers, `warrants for computer searches
must affirmatively limit the search to evidence of specific federal crimes or
specific types of material.’
U.S. v. Vafeades,
supra.
The District Court Judge then began his analysis of
Vafeades’ first argument, which was that “the search warrant is invalid because
it authorized a limitless search of his electronic devices.” U.S. v. Vafeades, supra. He found that argument to be “without merit”.
U.S. v. Vafeades, supra. The judge went on to explain that Vafeades
contends
the warrant is not valid because it
does not identify the statutory provisions he violated. While the
warrant itself does not list the statutes, the warrant refers to the
application for the warrant, which on its face lists three violations of the
United States Code: 18 U.S. Code § 1201(a)(1), Kidnapping; 18U.S. Code § 2421, Transportation for Unlawful Sexual Activity; and 18 U.S.Code § 2252, Child Pornography. The Application incorporates by
reference the Affidavit which contains the statutory provisions for which
evidence is sought. The Warrant refers to Attachment B, which lists evidence to
be seized and includes several references to the specific crimes under
investigation and definitions under the child pornography
statutes. Investigators had ample information as to what the search
warrant permitted them to seize.
U.S. v. Vafeades,
supra.
The judge then explains that, in order to
support his argument, Vafeades
cites U.S. v. Cassady, 567
F.3d 628 (U.S. Court of Appeals for the 10th Circuit 2009), and Mink
v. Knox, 613 F.3d 995 (U.S. Courtof Appeals for the 10th Circuit 2010), alleging that the
warrant here endorses a `general search for evidence of crimes not
specifically listed in the warrant.’ The facts in Cassady and Mink, however,
differ significantly from this case.
In Cassady, a local
sheriff challenged the district court's denial of qualified immunity from liability for his and his department's search for marijuana in a local farmer's
home and his entire property. In affirming the district court's
denial of qualified immunity, the Tenth Circuit examined the search warrant and
accompanying affidavit for Cassady's property and held that the search warrant
was invalid because, among other things, it authorized the search of his entire
farm, including his home, the seizure of `[a]ny and all illegal contraband,’ and
`all other evidence of criminal activity.’ In Mink, another
case involving qualified immunity, the Tenth Circuit held the search warrant
for the plaintiff's computer was overly broad because `there was no reference
anywhere in the warrant to any particular crime.’
Unlike the search warrants in Cassady and Mink, the
warrant in this case specifically listed particular crimes. The search warrant
here does not authorize the `general rummaging’ the court criticized in Cassady.
Instead, the attachments to the search warrant specify the electronic
devices to be searched, along with their serial numbers if available. The
search warrant and its attachments also specify the types of evidence to be
seized, specifically, evidence related to child pornography and kidnapping. In
twelve of the fifteen paragraphs listed in Attachment B `List of Items to Be
Seized’ there is a specific reference to either child pornography or to
kidnapping.
U.S. v. Vafeades,
supra. If you would like to read
more about drafting search warrants, check out this site.
The judge then explained that Vafeades also took issue with
specific paragraphs in Attachment B to
the search warrant, which lists the items to be seized. Vafeades argues
that the statutory definitions referred to in paragraphs 3, 5, 8 through 10,
and 12 through 14 are not a substitute for the actual statutory provisions he
is alleged to have violated. His argument is incorrect. `[O]ur case law
requires that “warrants for computer searches must affirmatively limit the
search to evidence of specific federal crimes or specific types of material.”’ The
references to the specific statutory violations and the related definitions in
paragraphs 3, 5, 8 through 10, and 12 through 14 provided sufficient guidance
as to exactly what evidence the forensic examiner was permitted to seize.
Similarly, although paragraphs 4, 7 and 11 do not cite a statutory violation
and do not refer to a statutory definition, those paragraphs directed the
forensic examiner to seize only evidence of minors engaged in sexually explicit
conduct.
Vafeades contends that written
depictions of child pornography referred to in paragraphs 12 through 14 cannot
be criminalized, and therefore, render the search warrant invalid. It
is correct that certain writings about child pornography, such as the advocacy
of child pornography, cannot be criminalized. However, writings may
be admissible to show a defendant knowingly possessed child pornography or to
link a defendant to the computer on which child pornography was found.
U.S. v. Vafeades,
supra.
And he noted that Vafeades claimed
paragraphs 1 and 6 lack any
particularity at all. As an initial matter, Vafeades's argument
regarding paragraph 6 is moot because the United States did not find any
evidence that falls under paragraph 6; that is, any records, documents,
invoices or materials related to any accounts with an internet service provider
or social networking website. Even if the United States found
evidence responsive to paragraph 6, the lack of particularity in paragraph 6
does not render the entire search warrant invalid. Read in context, the
structure of Attachment B suggests that paragraph 6 is subject to the same
limitations as the paragraphs that reference either specific statutory
violations or specific statutory definitions.
Paragraph 1 lists eleven items to be
seized `[f]or any computer or storage medium whose seizure is otherwise
authorized by this warrant and any computer or storage medium that contains or
in which is stored records or information that is otherwise called for by this
warrant.’ Thus, paragraph 1 directs the person seizing items from the
electronic devices to only seize those items that the warrant explicitly
authorizes in paragraphs 2 through 14.
U.S. v. Vafeades,
supra.
The judge went on to
note that Vafeades
acknowledges that paragraph 2 of
Attachment B meets the Fourth Amendment's particularity requirement, but
contends that paragraph 2 cannot be severed because paragraph 1, and paragraphs
3 through 14 lack sufficient particularity. It is not necessary to decide
whether paragraph 2 can be severed from the warrant because Attachment B does
not lack sufficient particularity. One paragraph refers specifically to
statutory violations, seven paragraphs refer to statutory definitions relating
to the child pornography statute, and three paragraphs refer to evidence of
minors engaging in sexually explicit conduct. Even assuming for
argument's sake that the warrant lacked sufficient particularity, it was not so
overbroad that a reasonable officer would have known that the search warrant
was illegal.
U.S. v. Vafeades,
supra.
Finally, the District Court Judge took up Vafeades’ argument
that the search warrant was
invalid because the search warrant did
not identify a valid search protocol. To support his request,
Vafeades relies on two memoranda and orders from magistrate judges outside of
this district who have required search protocols for electronic devices such as
computers and cell phones. The U.S. Court of Appeals for the 10th]
Circuit, however, does not and `has never required warrants to contain a
particularized computer search strategy.’ Simply because a warrant does
not contain a search protocol does not mean the `warrant is per se overbroad.’ While
the 10th Circuit's `efforts to apply the Fourth Amendment's particularity
requirement to computer searches are relatively new and [the court's] existing
treatment is far from comprehensive,’ the court has suggested `that it is “unrealistic
to expect a warrant to prospectively restrict the scope of a search by
directory, filename or extension or to attempt to structure search methods—that
process must remain dynamic,”’ as file
or directory names may or may not alert one to illegal activity.
Vafeades has not made a sufficient argument
that the search protocol here was deficient. Paragraph 15 of Attachment B to
the search warrant explains various search procedures that SA Horan anticipated
might be used. Additionally,
when SA Horan submitted Vafeades's electronic devices with the IWRCFL Service
Request form, he also submitted the search warrant and his affidavit, and wrote
in the explanation section that the forensic examiner was to look for evidence
of child pornography and kidnapping.
U.S. v. Vafeades,
supra.
The judge concluded by explaining that
[o]ther than suggesting that the
government should have returned to a magistrate judge with a `sophisticated
technical explanation’ of the search, Vafeades fails to explain
exactly what search protocol should have been used or `how protocols the
government followed in this case were unreasonable or insufficiently particular.’
Without more guidance, it is not possible to `assess rationally [Vafeades's]
challenge to the government's search procedures in this case.’ If the actual
search procedures had been challenged, the IWRCFL Service Request form would
likely be dispositive.
U.S. v. Vafeades,
supra.
He therefore denied Vafeades’ motion to suppress. U.S. v.
Vafeades, supra. If you would like to read more about drafting search warrants, check out this article.
1 comment:
Yet another interesting case you bring up concerning the 4th Amendment and electronic devices. Well done, keep on posting!
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