Opinion
CR-21-01118-001-TUC-JCH (JR)
07-11-2023
United States of America, Plaintiff, v. Duane Lee Johnsen, Defendant.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
This matter is referred to United States Magistrate Judge Jacqueline Rateau for pretrial matters. Defendant Duane Lee Johnsen (“Defendant”) filed a Motion to Suppress Evidence Acquired With Invalid Search Warrant (“Motion to Suppress”). (Doc. 83). The United States (the “Government”) filed its Response in Opposition to Defendant's Motion to Suppress (“Response”). (Doc. 85). Defendant did not reply. A hearing was conducted at which Defendant testified and five exhibits were admitted. (Doc. 88-90). This Court took the matter under advisement. (Doc. 87). The plea deadline is August 25, 2023, and a jury trial is set for September 11, 2023 at 9:30 a.m. before District Judge John Hinderaker. (Doc. 81). As more fully set forth below, the Magistrate Judge recommends that the district court deny Defendant's Motion to Suppress.
I. Facts
a. Charges
On May 19, 2021, Defendant was indicted on one count of violating 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), Possession of Child Pornography and three counts of violating 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), Knowing Access of Child Pornography. (Doc. 1). On April 12, 2023, Defendant was charged by a Superseding Indictment with the above mentioned four counts and an additional single count of violating 18 U.S.C. § 2252(a)(2) and (b)(1), Receipt of Child Pornography. (Doc. 71).
b. Factual Background
The material facts underlying the Government's investigation of Defendant are largely undisputed. This case stems from a law enforcement investigation of individuals sharing child sexual abuse material over the publicly available eMule peer-to-peer file sharing program. Defendant was identified through his Internet Protocol (“IP”) address in 2018 when Homeland Security Investigations (“HSI”) agents used law enforcement software to identify individuals sharing images or videos depicting child pornography over eMule. (Doc. 85 at 2). Between August 3, 2018 and November 19, 2018, law enforcement eMule software identified an eMule user with a nickname of “Sparky's[3] Engine” in possession of 19 files suspected of depicting child sexual abuse material. (Doc. 85 at 2). The eMule program showed that those files were available for download on the file-sharing network from user “Sparky's Engine” with an IP address that was ultimately tied to Defendant. Id. After learning that the IP address identified as possessing child sex abuse material was issued to Defendant during the relevant time, HSI agents obtained a search warrant for Defendant's home. Id. Agents executed the warrant on December 10, 2018, seizing dozens of electronic devices, several of which contained evidence of child sexual abuse material. Id. Additional facts relevant to the issues on review are discussed infra.
The primary function of peer-to-peer file sharing programs is to allow users to “distribute large amounts of data over the Internet.” United States v. Maurek, 131 F.Supp.3d 1258, 1259 (W.D. Ok. 2015). Such data includes “videos, audio, pictures, text, and any other type of file.” United States v. Arumugam, No. 19-CR-41-RSL, 2020 WL 1154651, at *1 (W.D. Wa. Mar. 10, 2020). Peer-to-peer networks “allow users to acquire files directly from other network users.” Id.
II. Motion to Suppress
Defendant seeks to suppress evidence and all fruits of evidence seized on December 10, 2018 during the search warrant execution. (Doc. 83). He claims law enforcement conducted an illegal pre-search of his computer when they attempted to download files he was sharing over the peer-to-peer software eMule before a warrant was obtained. Id. at 5. He also argues that law enforcement failed to disclose material information in obtaining the warrant claiming that he was also sharing a large number of noncontraband material and the possibility that he was not sharing only child sex abuse material should have been disclosed to the magistrate judge who signed the warrant. (Doc. 83 at 6-9). Lastly, Defendant claims the execution of the warrant was unreasonable because the warrant was executed before 6:00 a.m. while it was still dark outside and law enforcement destroyed the sliding glass door to his home and his security cameras. (Doc. 83 at 9-12). The grounds for relief are addressed below.
The Government represents that Sparky is Defendant's public profile name on Facebook. (Doc. 85-1 at 44). Defendant has not challenged the Government's representation.
a. Defendant has not Established that Agents Conducted an Illegal PreSearch
Defendant argues the Government conducted an illegal “pre-search” of his computer when they used “proprietary software to investigate and interrogate his computer.” (Doc. 83 at 5). He claims the Government used data obtained in the alleged illegal pre-search to obtain his IP address and request personal information from his internet service provider. Id. He claims that it was only after agents acquired files through their pre-search of his computer, did they request a warrant. Id. at 8. He also urges that the search violated 18 U.S.C. § 2511 because, according to Defendant, this statute requires the Government to have a warrant prior to intercepting electronic communications. Id. The Government argues that the United States Court of Appeals for the Ninth Circuit has held that law enforcement's use of file-sharing software to identify targets is not search implicating the Fourth Amendment. (Doc. 85 at 6). It also argues that since Defendant has no reasonable expectation of privacy in the files he shared over eMule, 18 U.S.C. 2511 is inapplicable. Id. at 8 n.3. As explained below, this Court agrees with the Government.
Defendant testified that he had eMule on his computer and that he is familiar with the term peer-to-peer. (TR 32, 59). He has used other types of file sharing software. (TR 60). He testified that he used eMule to search for “all kinds of things, woodworking, metalworking, [his] favorite TV shows, [and] music.” (TR 32). When he found something of interest, he would try to download multiple copies of it in an effort to obtain the best copy. (TR 32). The files he obtained were downloaded into a downloads folder. (TR 34). He testified that “once it's in the download folder, eMule labels that complete and available for uploading” by anyone using the Internet. Id. Defendant testified to having many shared folders that he set up that he would move the downloaded content into. (TR 62). He could not turn off the eMule sharing function because the software did not allow for that. (TR 35). He testified to speaking with “the program writers about making that change so that it would be unavailable at all times until [he could] make the determination if it was safe to upload.” (TR 35). He wanted to restrict the sharing function because he was concerned with sharing illegal content. (TR 63).
In United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2007), the Ninth Circuit Court of Appeals affirmed the district court's denial of Ganoe's motion to suppress evidence obtained from Ganoe's computer. Ganoe argued that agents conducted a warrantless search on his computer when agents used the file sharing software LimeWire to access child pornography files on his computer. Id. The court of appeals recognized that, while as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer, “[the court] fails to see how this expectation can survive Ganoe's decision to install and use file-sharing software, thereby opening the computer to anyone else with the same freely available program.” Id. The Ninth Circuit continued:
The crux of Ganoe's argument is that he simply did not know that others would be able to access files stored on his own computer. But he knew he had file-sharing software on his computer; indeed he admitted that he used it-he says to get music. Moreover, he was explicitly warned before completing the installation that the folder into which files are downloaded
would be shared with other users in the peer-to-peer network. Ganoe thus opened up his download folder to the world, including Agent Rochford. To argue that Ganoe lacked the technical savvy or good sense to configure LimeWire to prevent access to his pornography files is like saying he did not know enough to close the drapes. Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable, Ganoe cannot invoke the protections of the Fourth Amendment. See United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004).Ganoe, 538 F.3d at 1127.
In United States v. Arumugam, 2020 WL 1154651, at *3, the district court rejected the defendant eMule user's argument that “eMule users do not expect or consent to having their eMule activities recorded or aggregated by the government.” Id. The district court held that “[a]ccessing files in a ‘shared' folder does not violate the Fourth Amendment because no reasonable expectation of privacy exists with regard to such file.” Id. (quoting United States v. Blouin, CR 16-307 TSZ, 2017 WL 3485736, at *2 (Aug. 15, 2017)); United States v. Dryer, 804 F.3d 1266, 1278 n.6 (9th Cir. 2015) (internal quotation marks and citations omitted) (“[A]ccessing files made available through [a P2P] file-sharing software does not constitute a search, ... [because] when an individual uses a file-sharing software, he opens his computer to anyone else with the same freely available program, thereby opening up his download folder to the world.”).
Here, Defendant admits to using the peer-to-peer software program eMule for file sharing. He knew that by using eMule certain content on his computer was available for download by other eMule software users. He even testified that he contacted the “program writers” about the sharing function to see if it could be restricted and learned that it could not. The Ninth Circuit has squarely rejected the position that an individual retains a privacy interest in files that are made available for sharing-just as Defendant did-using peer-to-peer file sharing software. See Ganeo, supra. Accordingly, this Court rejects Defendant's argument that an illegal warrantless pre-search of his computer occurred when agents used law enforcement software to identify him as sharing child sex abuse material using the peer-to-peer eMule file sharing software.
Defendant summarily argues that 18 U.S.C. § 2511 required the Government to obtain a written certification stating that “no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required” and it failed to do so. (Doc. 83 at 9). However, as explained above, this Court finds that Defendant lacked a reasonable expectation of privacy in the files that he shared using eMule. The Federal Wire Tap Act applies to communications in which there is an expectation of privacy. See Huff v. Spaw, 794 F.3d 543, 551-52 (6th Cir. 2015) (“Having determined that James Huff failed to exhibit an expectation of privacy, we need not determine whether circumstances justified such an expectation to conclude that his statements do not qualify as oral communications and therefore cannot give rise to liability under Title III.”); Kee, 247 F.3d at 211 n.8 (recognizing that the Fourth Amendment determination of a reasonable expectation of privacy and the federal wiretap analysis overlap). Because Defendant did not have a reasonable expectation of privacy in the files that were discovered through government use of file sharing software, this Court rejects Defendant's argument that the Government violated the Federal Wire Tap Act.
The search warrant was authorized by the undersigned. (Doc. 85-1 at 2). At the motion hearing all parties agreed that this Court could hear the Motion to Suppress. See Transcript of Proceedings (TR) at 10.
In sum, this Court finds that agents did not conduct an illegal pre-search on Defendant's computer prior to obtaining the search warrant.
b. Defendant has not Established Agent Nichols Failed to Disclose Material Information in Obtaining the Warrant
Defendant argues that in requesting the warrant Agent Nichols failed to tell the Court that the child sex abuse material “was a tiny, perhaps even miniscule fraction of the total number and size of the files being downloaded.” (Doc. 83 at 6). He argues “the same folder where [a]gents allegedly located the child exploitation videos also had literally terabytes of information being downloaded and held in the temporary files ...” Id. at 6-7. He concludes, “Agent Nichols (sic) opinion that the IP address he was searching had child pornography files belonging to [Defendant] ‘rest[s] upon mere affirmance or belief without disclosure of supporting facts or circumstances.'” Id. at 7. Defendant relies upon United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013). Id. The Government urges the fact that the child sexual abuse material files were amongst other noncontraband files does not negate the probable cause supporting the warrant. (Doc. 85 at 9). The Government insists that the illegal images for which there was probable cause to issue the warrant become no less supportive of probable cause when they are held among noncontraband items. Id. As explained below, this Court agrees with the Government.
Agent Nichols's affidavit in support of the search warrant states in relevant part:
28. During August 2018, Homeland Security Investigations (HSI) special agents in Tucson, Arizona initiated the use of investigative software that was connected to the Internet to conduct an investigation on the eMule/ED2K peer-to-peer (P2P) file-sharing network. The software is designed to search the eMule/ED2K P2P network for Internet Protocol (IP) addresses that are
possessing and/or offering to share files depicting child pornography. The software compares hash values[6] of files that were made available for download by other P2P users on the eMule/ED2K network with hash values of known files from a “files of interest” (FOI) list, which consists of files previously identified by other law enforcement officers through their investigations.
29. While most of the files in the FOI list have been determined to be child pornography, the FOI list also contains other child-exploitation material, such as child erotica, non-pornographic images that are part of a known childpornography series or depict a known child-pornography victim, and stories about sexual activity involving children. If a hash value match from the FOI list is determined, the software will note the IP address of the computer possessing the file(s) and will attempt to download the file(s) from that computer. The software accomplishes this by establishing a direct connection with the computer using the suspect IP address.
30. Through hash value matches, the investigative software noted that IP address [redacted] (suspect IP address) was possessing and/or offering to share child pornography files. Specifically, the investigative software detected files from the FOI list within a shared folder on the computer using the suspect IP address on multiple dates between August 3, 2018 and November 19, 2018.
31. The investigative software attempted to download the FOI files contained within the shared folder on the computer using the suspect IP address; however, the download attempts were unsuccessful. []
32. Although the investigative software was unable to download the files from the suspect IP address, it was able to identify several FOI files that were possessed by the computer using the suspect IP address beginning on August 3, 2018, and on different dates between August 3, 2018 and November 19, 2018. Specifically, during that time, the investigative software identified approximately 19 unique FOI that were contained within the shared folder on the computer using the suspect IP address. In each case, the investigative software determined this by establishing a direct connection to the computer using the suspect IP address, at which time the suspect computer reported to the investigative software that it possessed the various FOI files within a shared
folder. The suspect computer also reported identification information from each of the FOI that it possessed, included the files' hash values, file sizes, and filenames as they appeared on the suspect computer. The suspect computer further reported that it possessed each of the identified FOI in their entirety.
33. A review of the filenames as they appeared on the suspect computer showed that they were indicative of child pornography, as they contained common child-pornography terms. [. . .](Doc. 85-1 at 40-42, ¶ 29-33). The warrant affidavit lists the filenames that were identified by the investigative software. Id. at 41-42, ¶ 33. The warrant affidavit sets forth that the hash values for the identified FOI identified by the computer using the suspect IP address were also compared to the hash values for files contained within an HSI media library. Id. at 42, ¶ 34. The HSI media library contained 9 of the 19 FOI that were identified by the investigative software. Id.
The search warrant lays out in detail that government file sharing software identified a user as possessing and potentially sharing 19 files depicting child sex abuse material from August 3, 2018 to November 19, 2018. The IP address associated with the user was identified as Defendant. In light of the foregoing, this Court finds that informing the magistrate judge that the child sex abuse files were also found among noncontraband files would not-and does not-negate a finding of probable cause.
This case is unlike United States v. Underwood relied upon by Defendant. In Underwood, the court held that an affidavit containing facts that (1) the defendant delivered two wooden crates to two individuals in a parking lot and (2) a detective observed “a baggie of a personal-use amount of marijuana” at the defendant's home, lacked probable cause. Underwood, 725 F.3d at 1082-1086. Here, as laid out above, the warrant affidavit contains sufficiently detailed information that the government file sharing software identified a user as possessing and potentially sharing 19 files depicting child sex abuse material from August 3, 2018 to November 19, 2018, and that the user's IP address was identified as belonging to Defendant.
Defendant requests a Franks hearing relying on his assertion that Agent Nichols should have disclosed that the child sex abuse material that was found on his computers was among terabytes of noncontraband. (Doc. 83 at 1, 12). “An affidavit supporting a search warrant is presumptively valid.” Arumugam, 2020 WL 1154851, at *4 (citing Franks, 438 U.S. at 171). However, “[e]vidence obtained through a search warrant is excludable if ‘a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.'” United States v. Taylor, No. CR-16-01377-PHX-ROS, 2017 WL 11458489, at *1 (D. Ariz. Sept. 18, 2017) (quoting Franks, 439 U.S. at 155-56). A defendant must make a “‘substantial preliminary showing that the affidavit contained actual falsity, and that the falsity either was deliberate or resulted from reckless disregard for the truth' in order to obtain an evidentiary hearing on the validity of the search warrant.” Taylor, 2017 WL 11458489, at *1 (quoting United States v. Chester, 678 F.2d 1353, 1360 (9th Cir. 1982)). The same standard applies to omissions. United States v. Valles, No. CR 12-0262-TUC-LAB, 2013 WL 1867017 (D. Ariz. Jan. 30, 2013) (citing United States v. Meling, 47 F.3d 1546, 1553 (9th Cir. 1995)). A defendant must show that either a false statement or an omission is material-that it is necessary-to the probable cause finding. Valles, 2013 WL 1867017 at *4 (citing United States v. Chavez- Miranda, 306 F.3d 973, 979 (9th Cir. 2002)).
As mentioned, Defendant urges that Agent Nichols failed to disclose that in addition to containing child sex abuse material his devices also contained terabytes of noncontraband material. Defendant offers no legal theory on the relevance of this to the magistrate judge's probable cause determination. As explained above, this Court finds that the warrant affidavit contains sufficiently detailed information that the government file sharing software identified a user as possessing and potentially sharing 19 files depicting child sex abuse material from August 3, 2018 to November 19, 2018, and that the user's IP address was identified as belonging to Defendant. Moreover, Defendant also fails to make an offer of proof that Agent Nichols intentionally or recklessly omitted the information that the child sex abuse material that was found on Defendant's devices was among terabytes of noncontraband. See Franks, 438 U.S. at 171 (allegation of intentional or reckless omission must be accompanied by an offer of proof). This Court finds that Defendant has failed to carry his burden of establishing that he is entitled to a Franks hearing.
In sum, this Court finds that Defendant has failed to establish that Agent Nichols, recklessly or otherwise, omitted material information in obtaining the warrant.
c. Defendant has Failed to Establish the Warrant was Unreasonably Executed
Defendant argues the warrant was unreasonably executed because it was executed before 6:00 a.m. and, according to him, the warrant “specifically refers to ‘daylight hours[.]'” (Doc. 83 at 4, 10). He claims that agents “stormed the property[]” when it was “completely dark.” (Doc. 83 at 10). He alleges that agents “neglected to note that the property was actually owned by his parents who also occupied the property.” Id. Defendant claims that his parents “were confronted by armed agents who entered the house in the dark by breaking down a sliding glass door to gain entry.” Id. He claims agents “tore down security cameras and then confiscated the computers which could have shown the date and time the [a]gents actually entered the property, as well as the exact nature of the intrusion.” Id.
Defendant and the Government agree that “[t]he manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979)). “Deciding whether officers' actions were reasonable requires [courts] to balance ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'” United States v. Ankeny, 502 F.3d 829, 836 (9th Cir. 2007) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “Claims that otherwise reasonable searches have been conducted in an unconstitutionally unreasonable manner must be judged under the facts and circumstances of each case.” United States v. Penn, 647 F.2d 876, 883 (9th Cir. 1980).
Defendant is incorrect that the warrant's execution was restricted to “daylight hours.” The warrant permits execution in the “daytime 6:00 a.m. to 10:00 p.m.” and does not contain a daylight hours restriction as he claims. (Doc. 85-1 at 2). The Court examines Defendant's evidence in support of his claim that the warrant was executed before 6:00 a.m. below.
In his Motion to Suppress, Defendant represents that “Homeland Security Agents showed up at or around 6:05 a.m., approximately an hour and ten minutes before sunrise.” (Doc. 83 at 4). On direct examination, Defendant testified that on the morning of the warrant's execution he woke up to the neighbor's dogs barking. (TR 20). He testified that he normally gets up at 6:00 a.m. and, on December 10, 2018, when he awoke to barking dogs he looked at his clock and it “was not 6:00 a.m.” Id. He poked his head out the window to “see what was going on outside that was causing the dogs to be so noisy[.]” (TR 20-21). He testified that he “found a yard full of people in black with no identifying markings.” (TR 21). A person in front of him was pointing a rifle at him. (TR 21). Defendant “asked for identification” and had a “shouting match” with the person pointing a rifle at him. (TR 21-22). At that point, Defendant's parents woke up. (TR 22). He told his parents, “There's a yard full of people here pointing guns at me.” (TR 22). Defendant's father opened the front door but did not exit. (TR 22, 47-48). Agents then destroyed a sliding glass door of the home to gain entry. (TR 23-24). Agents quickly approached Defendant, yanked him off his bed and handcuffed him. (TR 24). He was taken outside, placed in a vehicle, served with the warrant and interviewed. (TR 25-26).
On cross-examination, Defendant testified that he believes the warrant was executed before 6:00 a.m. explaining:
Q. Your testimony is it was before 6:00 when they entered the home?
A. I do believe so, but I don't remember. It was four years ago.
Q. So you don't remember or it was before 6:00?
A. I'm going to say it was before 6:00 because that's the memory I have. I'm not calling it reliable.(TR 71). Defendant testified that it took 25 minutes to a half an hour for the agents to clear the house. (TR 24, 70). After agents cleared the house, they began seizing items authorized by the warrant. (TR 25-26, 71-72). Exhibit 2 is a photograph of one of the computers seized and the time on the computer reads 6:43. (TR 42, 66; Ex. 2).
In light of (1) Defendant's representation in his motion that agents “showed up at or around 6:05 a.m.”; (2) his testimony that his memory that agents entered the home before 6:00 a.m. is not reliable; (3) his testimony that it took agents between 25 to 30 minutes to clear the house; and (4) the time stamp on the computer as reflected in exhibit 2 is 6:43, this Court finds that Defendant has not established that the warrant was executed before 6:00 a.m.
Defendant also argues that agents destroyed his security cameras thereby depriving him of obtaining evidence that may establish that the warrant was unreasonably executed. He claims “the destruction of the video cameras had a casual (sic) relationship to the legality of the search as, upon information and belief, the search actually took place prior to 6:00 a.m. and was therefore illegal.” (Doc. 83 at 11). Defendant testified that his surveillance camera data was not being uploaded to the cloud because he did not have the data space. (TR 25). He testified that “it is possible” that there is some surveillance footage on one of the seized computers. (TR 28-29). He also admitted that his surveillance cameras recorded locally on his computers' hard drives. (TR 55). The Government represents that the data on Defendant's seized computers is preserved in the same state in which it was seized on December 10, 2018, that a forensic copy of the data from the seized devices has been created and has been made available to Defendant or his representative. (TR 56). Defendant has not rebutted the Government's representation and has apparently failed to examine the contents of the seized devices in an effort to locate surveillance camera footage that is helpful to his claim that the warrant was unreasonably executed. Accordingly, this Court rejects Defendant's claim that agents unreasonably executed the warrant by allegedly depriving him of security camera footage.
This Court also finds that Defendant has not established that the warrant was unreasonably executed because the home's sliding glass door and security cameras were damaged during the warrant's execution. “[O]fficers executing a search warrant occasionally ‘must damage property in order to perform their duty.'” Denby v. Cty. of Casa Grande, No. CV-17-00119-PHX-SPL, 2023 WL 2787759, at *3 (D. Ariz. Apr. 5, 2023) (citing Liston v. Cnty. of Riverside, 120 F.3d 965, 979 (9th Cir. 1997)). “However, Ninth Circuit and Supreme Court authority has made clear that ‘unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively,' may sometimes amount to a Fourth Amendment violation.” Denby, 2023 WL 2787759, at *3 (citing Dalia, 411 U.S. at 258). Id. “The test of what is necessary to ‘execute a warrant effectively' is reasonableness.” San Jose Charter of Hells Angels Motorcycle Club v. Cty. of San Jose, 402 F.3d 962, 971 (9th Cir. 2005).
This Court agrees with the Government that the destruction of the sliding glass door was reasonably necessary for the execution of the warrant. Hearing testimony established that Defendant's father was standing by or behind the front door and refusing to exit the house. (TR 47-48). Agents breached the sliding glass door to gain entry to the house without injury to Defendant's father who agents believed was standing behind the front door and refusing to exit the home despite orders to do so. Id. See also, Doc. 85 at 4, n.1.
Regarding the alleged destruction of the security cameras, at the hearing Defendant testified that the property had two security cameras. (TR 54). He claimed that one camera was in pieces when he found it. (TR 55). Based on the totality of the circumstances in this case, the Court finds that the destruction of one security camera during the warrant's execution is not unreasonable. See, e.g., United States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991) (finding search reasonably executed where jackhammer was used on concrete slabs in search).
Lastly, Defendant urges he had a right to have a representative present during the search of his seized devices. (Doc. 83 at 11). He claims:
[T]he majority of files located on the computers seized . . . were in ‘temp' files, unallocated hard drive space, or had been deleted. [Defendant] maintained an interest in any personal data on the computers. The Court appears to understand why seizing computers has significant consequences: ‘What they (people whose computers are seized at the border by [a]gents) do not expect is that, absent some particularized suspicion, agents will mine every last piece of data on their devices or deprive them of their most personal property for days (or perhaps weeks or even months, depending on how long the search takes).' United States v. Ramos-Saenz, 36 F.3d 59, 61 n. 3 (9th Cir.1994). [Defendant] had a right to have an attorney or representative present when his computers were taken apart and searched by Government Agents.(Doc. 83 at 12). As set forth in its Report and Recommendation on Defendant's Motion to Dismiss Indictment, this Court rejected Defendant's unsupported assertion that he had a right to have a representative present during the search of his seized devices. (Doc. 94 at 5-6). Defendant's insistence here that he had a right to have a representative present during the search of his seized devices is also unsupported. Defendant's reliance on United States v. Ramos-Saenz is unpersuasive as that case involved whether the search of the defendant's shoes and baggage constituted a routine (as opposed to a non-routine) search at the border. See Ramos-Saenz, 36 F.3d at 61.
In sum, this Court finds that Defendant has not established the warrant was unreasonably executed.
III. Recommendation
For the reasons set forth above, this Court RECOMMENDS the district court DENY Defendant's Motion to Suppress. This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 21-1118-TUC-JCH. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).