United States v. Bowers

548 F.Supp.3d 504

UNITED STATES of America, Plaintiff,

v.Robert BOWERS, Defendant.

2:18-CR-00292-DWA

United States District Court, W.D. Pennsylvania.

Filed July 8, 2021

Cindy K. Chung, US Govt Atty, Eric G. Olshan, US Govt Atty, Soo C. Song, US Govt Atty, Troy Rivetti, US Govt Atty, Rebecca L. Silinski, US Govt Atty, United States Attorney's Office, Pittsburgh, PA, Julia Gegenheimer, US Govt Atty, Washington, DC, for Plaintiff.

Elisa A. Long, Public Defender, Michael J. Novara, Public Defender, Federal Public Defender's Office, Pittsburgh, PA, Judy Clarke, Clarke Johnston Thorp & Rice, PC, San Diego, CA, for Defendant.

MEMORANDUM OPINION AND ORDER OF COURT

RE: MOTION TO SUPPRESS NO. 12

AMBROSE, United States Senior District Judge

Summary

The Defendant filed a Motion to Suppress Evidence Seized During Search and Seizure of Records and Information Associated with Domain Name ("onedingo.com") from Internet Service Provider Tucows/Hover/eNom ("Tucows") – Motion to Suppress No. 12. (ECF No. 299, sealed at No. 313). The Defendant's Motion to Suppress is brought pursuant to Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure and the Fourth Amendment of the U.S. Constitution. Id. The Government filed a Response in Opposition thereto. (ECF Nos. 350, sealed at No. 360). The Defendant filed a Reply and the Government filed a Surreply. (ECF Nos. 381, sealed at No. 393 and 401). After careful consideration and for the reasons set forth below, Motion to Suppress No. 12 (ECF Nos. 299, sealed at No. 313) is denied.

Background

On November 6, 2018, the Government submitted an affidavit in support of an Application for a warrant to search and seize records from Tucows. (ECF No. 313-1, pp. 10-20). The warrant was issued on that same date. Id., pp. 1-9. The affidavit described the investigation into the Defendant's alleged conduct in the mass killing and wounding of others at the Tree of Life Synagogue ("Synagogue"). The application sought the authorization to search "information associated with the domain name, ONEDINGO.COM, including," inter alia, R.Bowers@onedingo.com, warroom@onedingo.com, iffy+gabai@onedingo.com, iffy+uscca@onedingo.com. Id. at pp. 3-4 ("Attachment A"). The particular things to be seized, set forth in Attachment B, were identified as "All information ... that constitutes the fruits, evidence and instrumentalities of violations" of the crimes charged involving the Defendant "since April 27, 2018, relating to the development, publishing, advertisement, access, use, administration or maintenance of any website, email server, and file storage enumerated in Attachment A ... including [items] indicating hatred, bias, or prejudice based upon race and/or religion...." Id. at p. 5.

Analysis

Pursuant to the Fourth Amendment, the Defendant seeks to suppress evidence seized during the search and seizure from Tucows of information associated with the domain "onedingo.com" because the "warrant was overbroad in failing to limit the information seized to that for which there may have existed probable cause." (ECF No. 299/313, p. 1). In opposition, the Government argues, inter alia, there was a substantial basis set forth in the Application for the warrant to establish probable cause. (ECF No. 350/360). The Government continues that even if there was a Fourth Amendment violation, the good faith exception to the exclusionary rule applies such that suppression is not warranted. Id. In Reply, the Defendant urges that probable cause is lacking and that the good faith doctrine does not apply. (ECF No. 381/393).¹

The Fourth Amendment prohibits "unreasonable searches and seizures" stating that "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. To that end, a warrant is overbroad when it permits the search and seizure of items for which there is no probable cause. See, United States v. Yusuf, 461 F.3d 374, 395 (3d Cir. 2006). Probable cause is a fluid concept that turns on the particular factual context at hand. Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The existence of probable cause is to be assessed through "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the magistrate], there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates , 462 U.S. at 238, 103 S.Ct. 2317. In other words, the inquiry rests on a common-sense, totality of the circumstances analysis; each piece of information in an affidavit is not assessed in isolation. See id. , 462 U.S. at 230-31, 103 S.Ct. 2317 ; United States v. Conley , 4 F.3d 1200, 1205–06 (3d Cir. 1993). Accordingly, our Court of Appeals has cautioned against " ‘overly compartmentaliz[ing]’ the determination of probable cause." United States v. Yusuf , 461 F.3d 374, 390 (3d Cir. 2006).

A reviewing court does not conduct a de novo determination of probable cause, but determines whether a "substantial basis" existed for the magistrate's finding of probable cause. Gates, 462 U.S. at 236, 103 S.Ct. 2317 ; United States v. Zimmerman , 277 F.3d 426, 432 (3d Cir. 2002). In making the determination of whether there was a substantial basis for finding probable cause, "the Court confines itself ‘to the facts that were before the magistrate judge, i.e., the affidavit, and [does] not consider information from other portions of the record.’ " Hodge , 246 F.3d at 305, quoting Jones, 994 F.2d at 1055 ; Zimmerman , 277 F.3d 426, 430, n.3 (3d Cir. 2002).

In this context, "[a] court ‘is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.’ " United States v. Hodge , 246 F.3d 301, 305-06 (3d Cir. 2001), quoting United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) ; United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993). "The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Hodge , 246 F.3d at 305, quoting Jones, 994 F.2d at 1057-58. A reviewing Court is to "give great deference to the magistrate judge's probable cause determination." Id. at 305 ; Zimmerman, 277 F.3d at 432. That said, it does not "mean that reviewing courts should rubber stamp a magistrate's conclusions." Jones, 994 F.2d at 1055.

Probable cause requires certain connections between the place to be searched, the suspected criminal activity, and the items to be seized. This connection or "nexus" is an expression of the requirement that probable cause exists to believe that evidence of an offense will be found at the place to be searched and can be made by inference. See, United States v. Stearn, 597 F.3d 540 (3d Cir. 2010) ; Hodge , 246 F.3d at 305-07 ; see also, United States v. Tsarnaev , 53 F. Supp. 3d 450, 462 (D. Mass. 2014). Thus, consistent with the applicable common-sense inquiry and as acknowledged by the Defendant, direct evidence linking the place to be searched with criminal activity is not required to establish probable cause to search. United States v. Burton , 288 F.3d 91, 103 (3d Cir. 2002) ; Hodge, 246 F.3d at 305 ; Jones, 994 F.2d at 1056.

As to this Motion, the Defendant concedes that the warrant affidavit establishes a connection between criminal activity and the "R.Bowers@onedingo.com" email address but argues that it fails to provide facts to establish probable cause for all other items associated with the onedingo.com domain name that the Government sought to seize. (ECF No. 299/313, p. 4). "[T]he breadth of items to be searched depends upon the particular factual context of each case and also the information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate." Yusuf , 461 F.3d at 395. Upon review, I find the affidavit set forth facts connecting the Defendant to the onedingo.com domain name and the onedingo.com domain name to criminal activity sufficient to provide a substantial basis that items sought from Tucows would contain evidence of the charged offenses including motive, bias hatred, and prejudice related to race and/or religion.

For example, the Application states that on October 27, 2018, the Defendant drove to and entered the Synagogue armed with multiple weapons, including handguns and an assault-style rifle, where people were in attendance and engaged in religious services and worship. (ECF No. 313-1).² The Defendant shot and killed multiple individuals and wounded many others. Id. "During the course of his deadly assault ..., [the Defendant] made audible statements indicating an animus toward people of the Jewish faith" commenting " ‘they're committing genocide to my people. I just want to kill Jews’ " and repeating "comments regarding genocide, his desire to kill Jewish people, and that Jewish people need to die." Id.

The Affiant continued, "[e]arly indications of the investigation are that BOWERS engaged in planning and premeditation prior to executing the killings and injury associated with this crime. BOWERS utilized software to wipe data from his computer hard drives to prevent law enforcement access to the data and used software encryption to secure his phone." (ECF No. 313-1, p. 13). The Affiant also determined through open source research that the Defendant "used electronic communications and social media as the means to espouse his views toward race and religion." Id. During the investigation, relatives of the Defendant provided "R.Bowers@onedingo.com" as one of the email accounts that the Defendant used in communicating with them. Id. This email address was confirmed by one of the Defendant's prior employers. Id. at pp. 13-14.

The Defendant's mother, Barbara Bolt, told law enforcement that he communicated with her "frequently via text, phone call and email...