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concluding that computer search exceeded limits of the Fourth Amendment under controlling Tenth Circuit precedent and noting that search "methods or criteria should have been presented to the magistrate before the issuance of the warrants or to support the issuance of a second, more specific warrant once intermingled documents were discovered"
Summary of this case from U.S. v. MaaliOpinion
Case No. 2:00CR197K
April 12, 2001
ORDER
This matter is before the court on Defendant's Motion to Suppress Evidence regarding the search of his vehicle and computers, Defendant's Order to Show Cause regarding enforcement of Magistrate Judge Alba's Order for Return of Seized Property, and Plaintiff's Motion to Supplement Record. Evidentiary hearings on the motion to suppress were held on February 27, 2001, and March 23, 2001. At the hearings, Defendant appeared pro se with Richard G. MacDougall as stand-by counsel, and Plaintiff was represented by Leshia M. Lee-Dixon and Brett Tolman. Both parties later submitted briefs on the motion to suppress and order to show cause, and oral argument was heard on these matters on April 9, 2001. Before the April 9, 2001 hearing, the court carefully considered all pleadings, memoranda, and other materials submitted by the parties. Since taking the matters under advisement, the court has further considered the law and facts relating to these motions. Now being fully advised, the court renders the following Order.
I. MOTION TO SUPPLEMENT RECORD
Plaintiff seeks to supplement the record before the court on Defendant's motions with a video of Defendant's home taken prior to the seizure of evidence and all of the documents seized from Defendant's computers. The court grants Plaintiff's motion and has reviewed such documents in its consideration of the following pending motions.
II. MOTION TO SUPPRESS EVIDENCE A. FINDINGS OF FACT
1. On April 15, 2001, Agent Rachel Ehrlich of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") and Idaho ATF agent Ralph Lambright attended a gun show in Salt Lake City. While at the gun show, they engaged in a conversation with Defendant, who stated that he manufactures .50 caliber rifles at his residence and sells the .50 caliber parts and unfinished receivers for $1,975 and fully assembled .50 caliber rifles "without paper" for an additional $400. Defendant also stated that the rifles are not marked with an identifying serial number. The agents purchased one fully assembled .50 caliber rifle from Defendant for $2300.
2. Before attending the gun show, Agent Lambright had received a written statement from Ahren Barnard, a Federal Firearms Licensee in the Boise Idaho area, stating that he had purchased thirteen Ballard Arms .50 caliber rifles from Defendant. The statement explained that Defendant, who had worked for Ballard as a machinist, received several Ballard Arms .50 caliber rifles from the owner's widow to repay a debt owed Defendant and that Defendant had proceeded to sell those rifles. Once the original rifles were sold, Defendant began manufacturing similar rifles through his own company, Liberty Arms. According to the statement, Defendant has been selling the rifles at Salt Lake City gun shows for years.
3. On April 10, 2001, Agent Lambright received a faxed correspondence from the Commonwealth of Massachusetts, Executive Office of Public Safety, Criminal History Systems Board, reflecting Defendant's conviction of the felony "Malicious Damage to Property by Explosion," in 1967. Defendant served two and a half years for the offense in the Massachusetts Correction Institute.
4. Four days after the gun show, on April 19, 2000, Agent Lambright telephoned Defendant and arranged to meet with him to purchase two more rifles. The meeting was arranged to take place on April 25, 2000 at Defendant's home.
5. On April 25, 2000, Agents Ehrlich and Lambright telephoned Defendant again and arranged to meet Defendant at a grocery store in Sandy, Utah, claiming that they could not find Defendant's residence. Because of the confirmation of Defendant's past felony conviction and his sale of the rifle to the agents at the gun show, the Agents had an arrest warrant for Defendant. Based on the preceding information, Agent Ehrlich had also obtained a search warrant for Defendant's home and vehicle. The affidavit supporting these warrants contain a description of Defendant, his home, and his vehicle.
6. When Defendant arrived in his vehicle, Agent Lambright approached and arrested him for possessing firearms while being a restricted person. After the arrest, Agent Michael VanAmburgh, who had assisted Agent Ehrlich in the service of the search and arrest warrants on Defendant and who was present in the grocery store parking lot with Agent Ehrlich and Lambright, approached Defendant's vehicle and observed one .50 caliber rifle on the back seat, one rifle on the floorboard and three tubes on the front seat. VanAmburgh took control of the vehicle and drove it back to Defendant's residence for a complete search.
7. After the arrest, Agent Ehrlich left the grocery store parking lot because the search warrant was about to be executed at Defendant's home. When the agents entered Defendant's house, they created a videotape of the residence prior to the seizure of any evidence.
8. In Defendant's basement, Agent Ehrlich observed large machinery, large quantities of metal parts, a computer and tools. Based upon the experience and belief of the agents that these items were involved in the manufacturing of .50 caliber rifles, these items were seized.
9. In the library/office area upstairs, Agent Ehrlich observed a computer that was on with the screen displaying a "To Do" list. The list included Agent Lambright's name and pager number. There were also additional documents and computer disks in this area with markings for rifle parts which were seized.
10. In the kitchen area of the home, Agent Ehrlich observed documents, including what appeared to be blueprints or sketched drawings for .50 caliber rifles, lists of .50 caliber parts, and SP-50 parts pull lists, that appeared to be generated from a computer. These items were also seized.
11. Based on these observations and her belief that additional evidence regarding the manufacturing of firearms could be found on the computers, Ehrlich requested and received two warrants to search each of the computers. In her affidavit for these warrants, Ehrlich included her observations, her belief that additional evidence could be found, and requested the seizure of all hardware, disks, software, and manuals relating to the computers.
12. The computers were searched by agents from ATF headquarters. The agents found several documents with references to firearms, including e-mails and manuals relating to the manufacture of firearms. The agents also found and downloaded documents such as Defendant's personal journal because it contained references to firearms. Defendant's journal, although it makes an occasional reference to firearms, is predominantly about Defendant's social and church activities.
13. Agent Ehrlich was not aware of the method or search criteria used by the agents conducting the computer search. Such method and criteria was never disclosed to the magistrate who issued the warrant, nor was a subsequent warrant requested when the agents began finding personal documents with references to firearms.
B. CONCLUSIONS OF LAW
1. "In determining whether an affidavit contains sufficient information to support a finding of probable cause for the issuance of a search warrant, this court, like the issuing judge or magistrate, must consider the totality of the circumstances and determine whether the affidavit established the probability that evidence of criminal activity would be located in the desired search area." United States v. Wittgenstein, 163 F.3d 1164, 1171 (10th Cir. 1998); see also United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998). This court grants "the magistrate's determination of probable cause "`great deference.'" Wittgenstein, 163 F.3d at 1172. The magistrate needed only a "substantial basis" for finding that probable cause existed. See id.
2. Defendant claims that the affidavit in support of the warrant authorizing the search of his vehicle lacked probable cause because it failed to contain sufficient facts showing any evidence relating to the target offenses would be found in the vehicle. The affidavit did establish that Defendant had admitted to manufacturing firearms at his residence and Agent Ehrlich stated that based on her experience, she believed evidence of that manufacturing could be found in the vehicle. However, even if the affidavit did not contain facts supporting a search of the vehicle, evidence of a crime that is in plain view can be seized without a warrant if:
"(1) the officer was lawfully in a position from which to view the object seized in plain view;
(2) the object's incriminating character was immediately apparent — i.e. the officer had probable cause to believe the object was contraband or evidence of a crime; and
(3) the officer had a lawful right of access to the object itself." Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). Here, the officers had just arrested Defendant pursuant to a valid warrant, the officers could see the rifles in plain view from outside the vehicle, the officers knew that Defendant's rights to possess firearms were restricted, Defendant's arrest warrant charged him with illegal manufacturing of the same type of firearms that could be plainly viewed, and the agents lawfully had the right of access to the vehicle incident to Defendant's arrest. Therefore, Defendant's motion to suppress the items seized from the vehicle is denied.
3. Defendant claims the affidavits in support of the warrants authorizing the searches of Defendant's computers do not support a finding of probable cause because they do not provide adequate information that evidence of the crimes could be found in the computers. The search warrants for the computers sought "Evidence of manufacturing, drafting, sales, or other indicia of weapons manufacturing." The supporting affidavits provided the magistrate with information regarding Defendant's agreement to meet and sell Agent Lambright two weapons, information that one of the computers was on during the execution of the search warrant for the house and the screen of that computer showed the Agent Lambright's name and pager number, and information regarding the discovery of blueprints and other indicia of the manufacturing of firearms in the areas of the house where the computers were located.
4. As in United States v. Simpson, 152 F.3d 1241, 1247 (10th Cir. 1998), this court finds that, "while minimal, the information presented to the judge was sufficient for him to conclude that there was a fair probability that evidence of [firearm manufacturing] would be found. . . . [N]oting, as well, the great deference to be afforded the issuing judge's determination."
5. Defendant claims the scope of the search of Defendant's computers violated the Fourth Amendment's particularity requirement. "The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings." United States v. Carey, 172 F.3d 1268, 1271 (10th Cir. 1999).
6. "`A search is "confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause."'" Simpson, 152 F.3d at 1248. The warrants for the computers in this case specify that the search is limited to evidence relating to the manufacturing of firearms for which there was demonstrated probable cause and an arrest warrant issued.
7. However, the Tenth Circuit has noted that searches on computers are unique because of their abundant storage capacity and the likelihood of discovering "intermingled documents (i.e., documents containing both relevant and irrelevant information)." United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000).
8. The Tenth Circuit, in discussing the "important limitations on the scope of computer searches," has explained that when law enforcement officers confront intermingled documents "a more particularized inquiry may be required":
`[L]aw enforcement must engage in the intermediate step of sorting various types of documents and then only search the ones specified in the warrant. Where officers come across relevant documents so intermingled with irrelevant documents that they cannot feasibly be sorted at the site, the officers may seal or hold the documents pending approval by a magistrate of the conditions and limitations on a further search through the documents. The magistrate should then require officers to specify in a warrant which types of files are sought.'"
Campos, 221 F.3d at 1148 (quoting Carey, 172 F.3d at 1275).
8. In this case, when the agents were faced with intermingled documents, such as Defendant's personal journal, they did not return for further instructions or a more specific warrant from the magistrate. The document displayed on the computer screen at Defendant's home that led the agent's to seek warrants to search the computers was an intermingled "To Do" list of Defendant's daily activities. Even at that time, the agents should have known that the warrant needed to specify what types of files were sought in the searching of the two computers so that personal files would not be searched.
9. Because the agents who testified at the evidentiary hearing on Defendant's motion to suppress had no knowledge of the search methods or criteria used by the agents who searched the computers, the United States has offered to provide additional testimony regarding such methods. However, this court concludes such methods or criteria should have been presented to the magistrate before the issuance of the warrants or to support the issuance of a second, more specific warrant once intermingled documents were discovered. Under the specialized standards set out by the Tenth Circuit in Carey and Campos for intermingled documents, this court concludes that the searches of Defendant's computers exceeded the bounds of the Fourth Amendment. Accordingly, the documents seized from Defendant's computers, such as his personal journal, are suppressed.
III. ORDER TO SHOW CAUSE
Defendant requests that this court enforce Magistrate Judge Alba's February 20, 2001 Order for Return of Seized Property to the extent Plaintiff's have not complied with such order. The February 20 Order directed the government to return Defendant's computers, any tools not used exclusively in the manufacture of firearms, reloading equipment, and any business records not related to the manufacture of firearms seized pursuant to the warrants issued in this case.
Defendant admits that the government has returned his computers and computer equipment. Plaintiff objects to the return of the remaining items mainly because of concerns relating to Defendant's retention of the evidence until trial. With respect to the reloading equipment, Plaintiff additionally asserts that Defendant, as a convicted felon, is restricted from its possession because it is used for the making of ammunition. However, Plaintiff's objections to the February 20 Order are untimely and should have been raised affirmatively by Plaintiff rather than in response to Defendant's Order to Show Cause. In addition, the February 20, 2000 Order specifically requires Defendant to preserve the tools and reloading equipment and return such equipment to Plaintiff one week before the trial date in this case if Plaintiff intends to use any of the items as exhibits at trial.
This court concludes that the terms of the February 20, 2000 Order should be complied with by both parties. As to the business records not related to the manufacturing of firearms, Plaintiff should consult with Defendant and Defendant's stand-by counsel and determine which documents should be returned to Defendant. As to the tools and reloading equipment, considering the fact that trial in this case is set to begin in ten days, Plaintiff may remain in custody of any of these items it plans to offer as exhibits at trial. Any items Plaintiff does not intend to offer as exhibits should be returned to Defendant within five days of the date of this order.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Suppress Evidence is DENIED with respect to the search of his vehicle and computers and GRANTED with respect to documents seized from his computers, that Defendant's Order to Show Cause is GRANTED with respect to the enforcement of Magistrate Judge Alba's February 20, 2001 Order, and that Plaintiff's Motion to Supplement Record is GRANTED.