In re Search Warrant Application for Search of a Townhome Unit

In the Matter of the Search Warrant Application for the Search of a Townhome Unit

Case No. 20 MC 106

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

April 20, 2020

Magistrate Judge Sunil R Harjani

MEMORANDUM OPINION & ORDER

The government has presented an application for a warrant to search a townhome for evidence of trafficking in counterfeit United States currency. Among the items identified by the government for search and seizure are electronic devices located in the premises. More specifically, the government's application seeks to seize electronic devices in the premises that are connected to the subject offense or in the possession of the target of the offense. The Court has determined that this limitation on the scope of the seizure of electronic devices is consistent with the Supreme Court's Fourth Amendment jurisprudence, and in particular, Riley v. California, 573 U.S. 373 (2014), and thus has authorized the warrant. The Court issues this opinion to explain the reasons why it has authorized a warrant with this limitation.¹

Background

The government seized a package coming from overseas, which was addressed to a townhome in this district. A customs officer searched the mail parcel and found that it contained thousands of dollars in counterfeit United States currency. The government has consequently submitted an application requesting authorization to install an electronic tracker on or inside themail parcel and seeks to monitor the transmission of the tracking device while the mail parcel is in public and private areas. In connection with the electronic tracker, the government has asked for an anticipatory search warrant to search the addressee townhome unit for evidence, instrumentalities, fruits, and contraband associated with the possession and importation of counterfeit currency, once the parcel is received at the townhome or opened at townhome. See 18 U.S.C. §§ 472 & 480. Attached to the government's application, in its list of items to be seized at the premises, the government has identified the mail parcel; various documents and records relating to counterfeit currency, such as photographs, notes, ledgers, items that can print counterfeit currency, contact information for individuals involved in the offense, and records on the possession or importation of counterfeit currency; as well as "[e]lectronically-stored data from devices reasonably believed to be possessed or used by [the suspect] or linked to the Subject Offenses," which will be searched only for the items listed above.

Discussion

The issue presented here concerns the scope of law enforcement's ability to seize electronic devices during a search executed pursuant to a warrant. The Northern District of Illinois has established a search protocol for the seizure of electronic devices. Consistent with Federal Rule of Criminal Procedure 41(e)(2)(B), the protocol allows the government to immediately remove from the premises electronic devices that are authorized for seizure pursuant to a search warrant, download the data and search for the specific items to be seized within 30 days, and then return all removed electronic devices to the premises. This written protocol, as permitted by Rule 41(e)(2)(B), is attached to all search warrants that authorize the seizure of electronic devices in this district. The protocol is a consequence of the practical difficulties in downloading all data in multiple electronic devices on site during the execution of the search warrant. The protocol alsoaccounts for the extra time needed to search the devices for the specific items for which there is probable cause to seize, such as ledgers of narcotics transactions or fraudulent financial statements, among multiple gigabytes of information of irrelevant information that may be stored on an electronic device. To be clear, the seizure of the electronic devices is temporary, but it allows the government time to search for and copy the specific items related to the offense, if any, among the entire set of data that is contained on that device.

Before Riley, the government would often seek authorization to remove every electronic device located in the premises, and then conduct a search for the specific items related to the offense. This broad language authorized the seizure of all cell phones in the premises, including those that were not connected to the targets of the investigation. For example, if a premises was occupied by a family of four, the warrant's broad authorization would include the seizure of the children's iPhones and iPads as well. In general, the traditional view of searching a premises was viewed as applicable to electronic devices, which is that agents may search the entirety of the premises as long as it was capable of containing the item to be seized. United States v. Ross, 456 U.S. 798, 821 (1982) ("[A] warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found."). Indeed, pre-Riley, the rationale made sense—if the government could search the most private parts of a home, such as bedroom closets and drawers, for evidence of a crime, surely the government could also search all electronic devices located in the premises. Moreover, law enforcement would not necessarily know which electronic devices in the premises stored evidence of the offense, which necessitated reviewing all electronic devices. During the execution of a search warrant, law enforcement often find multiple cell phones, iPads, desktop and laptop computers, external hard drives and thumb drives, along with other smart devices in residences,which are all capable of storing immense amounts of data. Thus, the search of all devices was viewed as akin to searching every room of the house, even the guest bedroom, rather than only the perpetrator's bedroom or home office, because evidence could easily be stored anywhere in the home. An important difference, however, was that once in the bedroom, the government could only seize and remove items connected to the offense that were specifically covered by the warrant. In the case of electronic devices, there remained and continues to remain, a greater intrusion of an individual's privacy interests in the procedure laid out by Rule 41(e)(2)(B) and this district's protocol, in that the individuals in the premises are temporarily deprived of the electronic device, and its entire contents, for approximately 30 days, and not simply the specific data that is tied to the offense. However, as stated above, the impracticality of on-site data duplication and searching made treating electronic devices in this manner necessary, and Rule 41(e)(2)(B) was amended in 2009 to account for this necessity. See Fed. R. Crim. P. 41(e)(2) advisory committee's note to 2009 amendment.

The Supreme Court's decision in Riley, and its recognition that cell phones in particular must be treated differently, has changed the calculus of authorizing seizures of every electronic device located in a premises. In Riley, the Supreme Court held that the government must seek a warrant to search cell phones that were seized incident to an arrest. In so doing, the Supreme Court described the unique nature of cell phones in the modern era, and distinguished those items from other objects that are traditionally the subject of a search incident to arrest. The Supreme Court stated: "Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person. The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, taperecorders, libraries, diaries, albums, televisions, maps, or newspapers." 573 U.S. at 393. The Supreme Court further noted the immense storage capacity of a cell phone, and acknowledged several consequences for privacy interests: "First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier." Id. at 394. In addition, the Court recognized the capacity of cell phones to store internet browsing history, cell location information, and applications that store data in the cloud and not just on the physical device itself. Id. at 395-96. In elaborating on the breadth of private data available on a phone, the Supreme Court made this relevant observation: "Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." Id. at 396-97.

Thus, while Riley involved whether the government could engage in a warrantless search of a cell phone incident to arrest, its discussion about the extensive amount of personal data available on the phone, much more than would be located in one's home, is instructive on how the Supreme Court views searches of cell phones in the modern era. Indeed, if cell phones contain more personal and private data than what is located in the home in non-digital form, it begs the question of whether the mere presence of a cell phone in a premises, without...