U.S.A v. Simpson

UNITED STATES OF AMERICA, Plaintiff,

v.MATTHEW NORMAN SIMPSON, Defendant.

Criminal No. 3:09-CR-249-D(06)

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

March 2, 2011.

MEMORANDUM OPINIONAND ORDER

Defendant Matthew Norman Simpson ("Simpson") moves the court to suppress all evidence seized from his home, office, and business centers, or, alternatively, for an evidentiary hearing. For the reasons that follow, the court denies the motion.¹

I

Simpson challenges the searches and seizures conducted pursuant to three search warrants issued by United States Magistrate Judge Paul D. Stickney: (1) 3:09-MJ-112, issued on March 30, 2009 for the search of 2323 Bryan Street, Suite 2440, Cage 3, Dallas, Texas 75201 (one of Simpson's business locations); (2) 3:09-MJ-114, issued on March 30, 2009 for the search of 8641 Glenturret, Ovilla, Texas 75154 (Simpson's home); and (3) 3:09-MJ-118, issued on April 1, 2009 for the search of 2323 Bryan Street, Suite 700, Cage 3, Dallas, Texas 75201 (one of Simpson's business locations). Judge Stickney found that there was probable cause toissue warrants for the searches of the premises and the seizure of the specified categories of property. Simpson maintains that all of the evidence seized pursuant to the three search warrants must be suppressed for essentially these reasons: (1) they are general warrants prohibited by the Fourth Amendment; (2) FBI Special Agent Allyn Lynd ("Agent Lynd") included false information in, omitted information from, and relied on stale information in his affidavits; and (3) there is no probable cause to believe that Simpson was connected to the alleged criminal activity.

In the attachments to the affidavits of Agent Lynd that supported each challenged search warrant, Attachment A described the property or premises to be searched and Attachment B described the items to be searched for and seized.² The warrants authorized the seizure of 13 categories of items: ³

1. Proceeds, records of proceeds, documents pertaining to, and/or payments related to the conspiracy, computer hardware, and bank records.

2. Electronic storage devices which consist of all equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical, or similar transmission, reception, collection and storage of data. Electronic storage device includes (but isnot limited to) any wireless/cellular telephone, cordless telephone, pager, fax machine, digital camera, audio recorder, video recorder and any data-processing device e.g. central processing units, memory typewriters, self-contained "laptop", "notebook", "mini-notebook", or "personal data assistant" computers.

3. Any telephonic device which consists of all equipment which can transmit information over any telephone network, assist in said transmission, alter said transmission, disguise such transmission, pay for such transmission, conceal such transmission, and otherwise enhance or degrade such transmission, to include but not limited to telephones, headsets, calling cards, voice alteration devices and software, microphones, speakers, Voice over IP equipment (both hardware and software), ANI altering devices and software, war dialing equipment, etc.

4. Internal and external storage devices e.g. fixed disks (hard drives), memory cards, floppy disk, LS-120, zip drive, jaz drive, Orb drive, CD drive, DVD drive, diskettes, tape drives, optical storage devices, transistor-like binary devices, and other memory storage devices including the storage media used in the devices. Peripheral input/output device such as keyboards, printers, scanners, plotters, video display monitors, and optical readers.

5. Related communication devices e.g. modems, cables and connections, recording equipment, RAM or ROM units, acoustic couplers, automatic dialers, speed dialers, programmable telephone dialing or signaling devices, and electronic tone-generating devices. Any device, mechanism, or parts that can be used to restrict access to electronic storage devices e.g. physical keys and locks bio metric readers, retinal scanners, facial recognition, signature verification, smart card or voice authentication.

6. Computer/Equipment software (digital information) which can be interpreted by electronic storage device equipment, computers and any of its related components to direct the way they work. Software isstored in electronic, magnetic, optical or other digital form. It commonly includes programs to run operating systems, applications (like word-processing, graphics, or spreadsheet programs), utilities, compilers, interpreters, and communication programs.

7. Electronic storage device documentation consists of written, recorded, printed, or electronically stored material that explains or illustrates how to configure or use electronic storage device hardware, software, or other related items.

8. Electronic storage device passwords and other data security devices are designed to restrict access to or hide software, documentation, or data. Data security devices may consist of hardware, software, or other programming code.

9. A password (a string of alphanumeric characters). A password usually operates as a sort of digital key to "unlock" particular data security devices.

10. Data security hardware, including but not limited to, encryption devices, chips, dongles, biometric readers, retina scanners, facial recognition systems, voice authentication systems, hand writing authentication systems and circuit boards.

11. Data security software or digital code, including but not limited to, programming code that creates "test" keys or "hot" keys, which perform certain pre-set security functions when touched. Data security software or code may also encrypt; compress, hide, or "booby-trap" protected data to make it inaccessible or unusable, as well as reverse the process to restore it.

12. Records, notes, address books, calendars, and any other documents that may relate to the violations; magnetic and/or electronic storage media which may contain information relating to the violations; financial records, bank records, correspondence, currency, or other forms of payment that may represent payments related to the violations; property, including manuals, records, media, and work papers, that may relate to trafficking Fraud and Related Activity in Connection with Computers.

15. Articles of personal property which would tend to establish the identity of persons in control of said premises, which items of property would consist in part of and include, but not limited to papers, documents and effects which tend to show possession, dominion and control over said premises, including but not limited to keys, canceled mail envelopes, rental agreements and receipts, utility and telephone bills, prescription bottles, vehicle registration, vehicle repairs and gas receipts, whether such items are written, typed or stored electronically.

Federal agents executed the warrants on April 2, 2009, seized items of property from the premises covered by each warrant, and returned the warrants to Judge Stickney on April 13, 2009.

Simpson was charged by indictment on September 1, 2009, by superseding indictment on January 5, 2010, by second superseding indictment on March 24, 2010, and by third superseding indictment on January 26, 2011 with various offenses, including conspiracy to commit wire and mail fraud. He now moves to suppress the seizures and fruits of the seizures and for an evidentiary hearing.

II

Simpson contends that the warrants are general warrants that are prohibited by the Fourth Amendment.

A

Under the Fourth Amendment, "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "Because indiscriminate searches and seizures conducted under the authority of 'generalwarrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment, that Amendment requires that the scope of every authorized search be particularly described." Walter v. United States, 447 U.S. 649, 657 (1980) (internal quotation marks and citation omitted). "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States, 275 U.S. 192, 196 (1927). In other words, the Fourth Amendment proscribes "issuance of general warrants allowing officials to burrow through a person's possessions looking for any evidence of a crime." United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (citing Andresen v. Maryland, 427 U.S. 463, 480 (1976)). For example, in United States v. Quinlan, 149 F.3d 1179, 1998 WL 414295 (5th Cir. July 14, 1998) (per curiam) (unpublished table decision), the panel held a warrant to be general where it authorized seizure of "property that constitutes evidence of the commission of a criminal offense and/or contraband, the fruits of a crime, and/or things criminally possessed." Id. at *1.

In reviewing a search pursuant to a warrant, the court engages in a two-step inquiry. United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003). First, the court determines whether the good-faith exception to the exclusionary rule applies. Id. (citing United States v. Pena-Rodriguez, 110 F.3d 1120, 1129-30 (5th Cir. 1997)). If it does, the court "need not reach the question of probable cause for the warrant unless it presents a 'novel question of law, ' resolution of which is 'necessary to guide future action by law enforcement officers and magistrates.'" Id. (quoting Pena-Rodriguez, 110 F.3d at 1130 n.10). Second, if the good-faith exception does not apply, the court proceeds to a determination of whether "'the magistrate had a substantial basis for concluding that probable cause existed.'" United States v. Lampton, 158 F.3d 251,...