United States District Court, D. Kansas
In the Matter of the Search of premises known as: A NEXTEL Cellular Telephone with [redacted] (Unknown Assigned Telephone Number) Belonging to and Seized from [redacted].
MEMORANDUM AND ORDER DENYING APPLICATION FOR SEARCH WARRANT
DAVID J. WAXSE, Magistrate Judge.
This court has been asked to issue a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure for the contents of a cell phone that is currently in the custody of the Drug Enforcement Agency (DEA). Based on this courts previous rulings and other case law this request has been denied. This memorandum will more explicitly explain the reasons for the denial.
The following was in the application submitted to the court:
1. On December 26, 2013, at approximately 10:00am, I was contacted via telephone by DEA S/A Christopher Kline regarding information he had received from a DEA Source of Information (SOI) earlier that morning.
2. S/A Kline informed me that the DEA SOI had provided information that there was a Toyota Tacoma with Mexico license plates at the Drury Inn hotel near Interstate 35 and Shawnee Mission Parkway in Merriam, KS that contained approximately 15 pounds of methamphetamine.
3. At approximately 10:20am, I established surveillance at [redacted] hotel at [redacted], Merriam, KS 66202. Upon establishing surveillance, I observed a white Toyota Tacoma pick-up truck bearing Nuevo Leon Mexico license plate [redacted] parked on the west side of the hotel.
4. At approximately 10:30am, I observed a Hispanic male and a Hispanic male juvenile walk from the hotel, enter the Tacoma, and depart the parking lot of the hotel.
5. At approximately 10:40am, I observed the Tacoma arrive at [redacted] at [redacted], Merriam, KS 66202. I observed the Hispanic male driver and Hispanic male juvenile passenger exit the Tacoma and enter the store.
6. At approximately 10:45am, I observed the Hispanic male and Hispanic male juvenile exit the [redacted] store, re-enter the Tacoma, and travel southbound through the shopping center parking lot. I then observed the Tacoma stop and park at a [redacted] store at [redacted], Merriam, KS 66202. I then observed the Hispanic male driver and Hispanic male juvenile passenger exit the Tacoma and enter the [redacted] store.
7. At Approximately 10:55am, I observed the Hispanic male and Hispanic male juvenile exit the [redacted] store and walk back to the Tacoma in the parking lot. At that time, DEA S/A Nick Wills and I approached the two individuals and made contact with the individuals outside the Tacoma. S/A Wills and I adorned police regalia clearly identifying ourselves as law enforcement.
8. Upon making contact with the two individuals, the driver was identified as [redacted], the juvenile was identified as his son, and the vehicle was verified as belonging to [redacted]. It was also determined that neither individual spoke English; therefore, a request for law enforcement assistance was immediately placed to the surrounding police departments for a Spanish-speaking officer. At that time, a Merriam uniformed officer arrived to provide site security. The Merriam officer did not speak Spanish.
9. At approximately 11:00am, S/A Wills and [redacted] entered my DEA official government vehicle and contacted via telephone Immigration and Customs Enforcement (ICE) S/A Timothy Ditter, an agent fluent in the Spanish language. During the telephone call, S/A Ditter asked [redacted] for verbal consent to search the Tacoma and the contents contained therein. [redacted] provided verbal consent to S/A Ditter to search his vehicle, as witnessed by S/A Wills.
10. At approximately 11:30am, S/A Wills and I initiated a consent search of the Toyota Tacoma. Soon thereafter, S/A Wills and I located seven large rectangular packages hidden inside the seat-backs of the rear truck seats of the vehicle. The packages were photographed in-place and then removed for further inspection. The packages appeared to be wrapped in plastic wrap and tape and appeared to contain a large quantity of suspected methamphetamine. S/A Wills then performed a field test of the contents of the packages, as witnessed by me, which provided a positive indication for the presence of methamphetamine.
11. At that time, [redacted] was placed under arrest and placed in a marked patrol vehicle for transport.
12. Subsequent to his arrest, DEA seized as evidence from [redacted] his NEXTEL cellular telephone which was identified as a black and orange NEXTEL smartphone having International Mobile Equipment Identity [redacted]. The telephone number assigned to this telephone is currently unknown.
13. I hereby request the Court's permission to conduct a full and complete forensic telephone examination of the NEXTEL cellular telephone described above. This exam includes a search of contact lists, calendars, stored image and video files, internet history, SMS and MMS text messaging, and other data related to drug sales, cultivation, and distribution.
14. The following search methodology will be employed to examine the cellular telephone.
SEARCH METHODOLOGY TO BE EMPLOYED
The search procedure of electronic data contained in cellular telephone, computer software, and/or memory storage devices may include the following techniques (the following is a non-exclusive list, as other search procedures may be used):
a. examination of all of the data contained in such cellular telephone hardware, computer software, and/or memory storage devices to view the data and determine whether that data falls within the items to be seized as set forth herein;
b. searching for and attempting to recover any deleted, hidden, or encrypted data to determine whether that data falls within the list of items to be seized as set forth herein (any data that is encrypted and unreadable will not be returned unless law enforcement personnel have determined that the data is not (1) an instrumentality of the offenses, (2) a fruit of the criminal activity, (3) contraband, (4) otherwise unlawfully possessed, or (5) evidence of the offenses specified above);
c. surveying various file directories and the individual files they contain;
d. opening files in order to determine their contents;
e. scanning storage areas;
f. performing keyword searches through all electronic storage areas to determine whether occurrences of language contained in such storage areas exist that are likely to appear in the evidence described in Attachment A; and/or
g. performing any other data analysis technique that may be necessary to locate and retrieve the evidence described in this affidavit.
A. The Constitutional Basis for the Court's Concerns
This Court reiterates its concern that the government's search warrants runs afoul of the probable cause and particularity requirements of the Fourth Amendment. The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."
The search warrant probable cause and particularity requirements serve two constitutional protections:
"First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the "general warrant" abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. The warrant accomplishes this second objective by requiring a "particular description" of the things to be seized."
The Fourth Amendment thus categorically prohibits the issuance of any warrant except one particularly describing (1) the place to be searched, and (2) the persons or things to be seized. The particularity requirement first mandates that warrants describe with particularity the place to be searched. "The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.'"
This test "ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Thus, the scope of a lawful search is:
"defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.'" While the manifest purpose of the Fourth Amendment particularity requirement is to prevent general searches,  it also provides assurances to the individual whose property is searched or seized of the lawful authority of the executing officer, the officer's need to search, and the limits of the officer's power to search.
In addition to the places to be searched, the warrant must also describe the things to be seized with sufficient particularity. This is to avoid a "general exploratory rummaging of a person's belongings, " and was included in the Fourth Amendment as a response to the evils of general warrants. First, the description of the things to be seized must be "confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause." Second, a warrant must describe the things to be seized with sufficiently precise language so that it informs the officers how to separate the items that are properly subject to seizure from those that are irrelevant. Stated another way: "As to what is to be taken, nothing is left to the discretion of the officer ...