United States v. Cioffi, Case No. 08-CR-415(FB) (E.D.N.Y. Oct. 26, 2009) (full-text).
Factual Background Edit
Defendant Mathew Tannin (“Tannin”) was charged with conspiracy, securities fraud and wire fraud in connection with two hedge funds he managed for Bear Stearns. The government sought a warrant to search his personal email account hosted by Google. The warrant was issued based on an affidavit containing an excerpt from an email sent by Tannin to co-defendant Cioffi, which suggested that Tannin was using his personal e-mail account for conspiracy purposes.
Trial Court Proceedings Edit
Defendant moved to suppress evidence seized from his personal account on the ground that the warrant did not comply with the Warrants Clause of the Fourth Amendment. The court granted the motion finding the warrant overly broad and not cured by the appended affidavit.
The government’s affidavit incorporated by reference the 27-page indictment to demonstrate probable cause that Tannin had committed the subject crimes and that he had used his personal e-mail in the commission thereof. The Stored Communications Act (SCA) allows the government to obtain the contents of personal e-mail accounts from companies such as Google pursuant to a warrant issued by the “court with jurisdiction over the offense under investigation.”
- The search would be limited to emails created on or before August, 2007, the day before Tannin retained personal counsel;
- The search required authority to examine stored data in a controlled environment away from Google’s offices;
- Federal law enforcement officials would review the records to segregate any content relevant to evidence of violations of federal criminal law.
The warrant that issued authorized the seizure of “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’” for Tanning’s personal Google account. There were no provisions limiting the seizure to content relating to evidence of any crime committed, let alone the crimes at issue.
The affidavit also provided for the manner in which Google was to comply with the warrant (delivery of an exact duplicate of all records sought), but made no mention of procedures for the executing officer to follow.
Because Tannin’s account had been deleted Google was only able to deliver a copy of the account as it had existed on November 7, 2007.
The prosecution identified an email from Tannin to himself dated November 23, 2006 in which he described his anxiety about work and the state of the market. The government intended to offer the 11/23/06 email as evidence of Tannin’s “knowledge and intent on all the pending charges against him.” Tannin moved to suppress.
The Warrants Clause of the Fourth Amendment serves to protect against “general warrants” and ensures that necessary searches are as limited as possible. A warrant must clearly state with particularity what is being sought. This “particularity requirement” is met if a warrant “enable[s] the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize.” The court reasoned that whatever new challenges computer searches pose in terms of particularity, it is always necessary “and hardly onerous” to confine any search to evidence of particular crimes.
The government argued that the defects in the warrant were cured by the affidavit. The court’s survey of the applicable law, however, stated that the government cannot rely on the information in an affidavit unless it is attached to the warrant and incorporated by reference using deliberate and unequivocal language. Because the affidavit was not attached to, or formally incorporated into, the warrant, it was irrelevant to the efficacy of the warrant resulting in suppression of the evidence seized.
The government cited two exceptions to suppression: “good faith,” and “the inevitable discovery” doctrine, which the court rejected. While the court did not that the unresolved issues in the law regarding parameters of a search for computer documents could lead to an office’s reasonable belief that search protocols and similar procedures are not constitutionally mandated, the law is clear in its requirement for a warrant to specifically mention the evidence sought or the criminal activity to which the evidence must relate. Because the warrant at issue lacked a clear statement of either of these things, the good faith exception did not apply. The “inevitable discovery” doctrine is essentially a rule of harmless error and the court ruled that there was no way to purge the taint of the invalid warrant.