In re Search One Apple Iphone Smartphone

628 F.Supp.3d 155

In the MATTER OF the SEARCH OF ONE APPLE IPHONE SMARTPHONE That is Currently Being Carried on the Person of [Redacted], Under Rule 41

Case No. 21-sw-253 (ZMF)

United States District Court, District of Columbia

Signed September 6, 2022

Diane G. Lucas, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia, Washington, DC, for USA.

MEMORANDUM OPINION

ZIA M. FARUQUI, United States Magistrate Judge

The United States filed an application for a warrant to seize and search a specified cellphone located outside the District of Columbia in connection with the investigation into the January 6, 2021 United States Capitol Breach. See Appl. and Aff. for Search/Seizure Warrant under Rule 41, ECF No. 1 [hereinafter "Appl."]. Unlike most search warrant applications submitted to this Court—which rely on the Court's authority to issue warrants for property in the district—the instant Application relies on the Court's authority to issue an extraterritorial warrant for property (the "Target Device") in connection with a domestic terrorism investigation. See Appl. at 13.¹ For the reasons stated below, the Court granted the government's request. See Search and Seizure Warrant, ECF No. 4.

I. BACKGROUND

A. The Capitol Breach

Since January 6, 2021, the government has been investigating those involved in halting the congressional certification of the 2020 Presidential Election, including those who assaulted law enforcement officers during the attempts to restore order.

B. Facts Specific to the Application and Probable Cause

In the instant Application, the affiant—an agent with the Federal Bureau of Investigation ("FBI") "assigned to a squad that is responsible for investigating Domestic Terrorism cases," Appl. at 11-12—proffered evidence that members of an organized group² ("the Group") engaged in significant planning prior to descending on Washington, D.C., and breaching the Capitol building, see id. at 6-23.

Specifically, the affiant stated that "there is probable cause to believe that violations of [ ] 18 U.S.C. §§ 371 (conspiracy); 231 (civil disorder); 1001 (false statements); 1361 (destruction of government property); 1512(c)(2) (obstruction of Congress); 1512(c)(1) (obstruction of justice - destruction of evidence); 1752(a) (unlawful entry on restricted buildings or grounds); 2384 (seditious conspiracy); and 40 U.S.C. § 5104(e)(2) (violent entry, disorderly conduct, and other offenses on Capitol grounds) ('the [Target] Offenses') have been committed by" the owner of the Target Device ("Device Owner"), other named individuals, "and others known and unknown." Id. at 12. The affiant further stated that "[t]here is also probable cause to believe that evidence of these crimes, to include the identities of co-conspirators, evidence of planning and coordinating these offenses, and communications in furtherance of the conspiracy discussed herein, is contained on the [Target Device]." Id.

Based on these and other facts, the affiant contended that such evidence "may include not only videos, photographs, geo-location data, and messages that constitute evidence of [the Device Owner's] involvement in the offenses under investigation, but it may also contain evidence sent by [the Device Owner's] coconspirators that are no longer available on their phones because of their efforts to destroy this evidence." Id. at 24. At the time the government submitted the Application, the Target Device was located in Texas, see id., which feels like "a galaxy far, far away," Star Wars Series (Lucasfilm Ltd.), compared to the undersigned's typical purview of Washington, D.C.

II. DISCUSSION

A. Evaluating Venue Under Rule 41(b)

Rule 41(b) generally authorizes a judge "to 'issue a warrant to search for and seize a person or property located within the districts,' " United States v. Thorne, 548 F. Supp. 3d 70, 116 (D.D.C. 2021) (citing Fed. R. Crim. P. 41(b)(1)) (emphasis added). However, Rule 41(b) also outlines five exceptions that expand a judge's authority to issue extraterritorial warrants.³ See id. at 116-17. One such exception comes from the USA PATRIOT Act, which amended Rule 41. Section 219 of the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat 272, empowers a judge to issue an extraterritorial warrant "in an investigation of domestic terrorism or international terrorism" so long as "activities related to the terrorism may have occurred" in the issuing district. Fed. R. Crim. P.41(b)(3).

Congress previously defined international terrorism. See 18 U.S.C. § 2331(1). And criminalized it. See 18 U.S.C. § 2332b.

The USA PATRIOT Act amended § 2331 to define domestic terrorism as activities that:

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States.

18 U.S.C. § 2331(5). However, "there is no federal criminal provision expressly prohibiting 'domestic terrorism,' as the terms defining domestic terrorism are not elements of criminal offenses." See Peter G. Berris et al., Cong. Rsch. Serv., R46829, Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues 1 (July 2, 2021). This left a Lard Lad sized donut hole in the statute. The government can obtain search warrants in an investigation of something that is not a crime. This is anathema to Rule 41, which is couched in terms of seeking "evidence of a crime," not intelligence gathering. Fed. R. Crim. 41(c)(1). Yet Congress chose to so fashion the law. The question then is what facts the government must establish to justify a search for which there is no crime and what limits—if any—exist in such searches.

1. Reason to Believe Standard

In a case of first impression, Chief Judge Howell considered what the standard of proof was to establish venue for extraterritorial searches pursuant to Rule 41(b)(2). Thorne, 548 F. Supp. 3d at 127. Chief Judge Howell concluded that the government must establish venue under a "reason to believe" standard. Id. "[T]he background constitutional policies that motivate the Rule, the legislative history of amendments to the Federal Rules of Criminal Procedure, and case law interpreting various provisions of Rule 41 all suggest that a flexible approach to interpreting this Rule is appropriate." Id. at 122. Chief Judge Howell rejected the actual knowledge and probable cause standards in favor of the lesser "reason to believe" standard because "Rule 41(b) is a venue provision that imposes a procedural rather than a substantive, and a rule-based rather than a constitutional, requirement for obtaining a warrant." Id. at 125.

Chief Judge Howell's analysis of Rule 41(b)(2) applies equally to Rule 41 (b)(3). There is no suggestion that the drafters intended Rule 41(b)(3) to require a different standard than Rule 41(b)(2). "Courts have a 'duty to construe statutes, not isolated provisions.' " Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 290, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 568, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). And "[w]e do not . . . construe statutory phrases in isolation; we read statutes as a whole." United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984). Thus, the government must proffer sufficient facts to establish a "reason to believe" both that there is (1) "an investigation of domestic terrorism or international terrorism"; and (2) that the Court is in a district "in which activities related to the terrorism may have occurred." Fed. R. Crim. P. 41(b)(3). As explained below, the text of Rule 41(b)(3) suggests that the government need not carry a heavy burden in meeting these two requirements.

i. Investigation of domestic terrorism

First, there must be an "investigation of domestic terrorism." Fed. R. Crim. P. 41(b)(3). Neither statute nor case law defines this provision. However, guidance from the Attorney General notes that the FBI can open domestic terrorism investigations "if there is an articulable factual basis for the investigation that reasonably indicates that the group or organization may have engaged or may be engaged in, or may have or may be engaged in planning or preparation or provision of support for . . . domestic terrorism as defined in 18 U.S.C. [§] 2331(5) involving a violation of federal criminal law." U.S. Dep't of Justice, The Attorney General's Guidelines for Domestic FBI Operations 23 (2008), https://www.justice.gov/archive/opa/docs/guidelines.pdf.

ii. District in which activities related to the terrorism occurred

Second, Rule 41(b)(3) does not require that a terrorist attack or specific crime occur in the district in which a warrant is sought. Instead, it only requires that "activities related to the terrorism may have" taken place in the district. Rule 41(b)(3) (emphasis added).

While "activities" is not defined in Rule 41(b)(3), it is defined in the Racketeer Influenced and Corrupt Organization Act ("RICO"). RICO criminalizes "racketeering activities," which are defined "broadly enough to encompass a wide range of criminal activity, taking many different forms and likely to attract a broad array of perpetrators operating in many different ways." H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 248-49, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (discussing 18 U.S.C. § 1961(1)). Congress drafted the RICO statute broadly because its predecessor "was no longer satisfactory because criminal activity had expanded into legitimate enterprises." Id. at 248, 109 S.Ct. 2893 (citing United States v. Turkette, 452 U.S. 576, 590-591, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)). Congress's "very generous definition of ...