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In re Application of United States of America for A Warrant Authorizing

United States District Court, D. Kansas

February 13, 2015

IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR A WARRANT AUTHORIZING. [REDACTED] IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR A WARRANT AUTHORIZING. [REDACTED]

MEMORANDUM AND ORDER

TERESA J. JAMES, Magistrate Judge.

This matter is before the Court on the government's Amended Motions for Delayed Service of Notice in the above-captioned cases.[1] Although each motion recites the separate facts of the two search warrants at issue, the government has attached to both motions the identical Supplemental Authorities in Support of the Amended Ex Parte Motions to Postpone Service of Notice.[2] In these cases, the government makes out of time requests for orders authorizing a 90-day delay in service of notice of the execution of warrants authorizing the acquisition of location data concerning cellular telephones, pursuant to Fed. R. Crim. P. 41(f)(3) and 18 U.S.C. § 3103a(c). The first case involves a cellular telephone with call number [REDACTED] ("Target Telephone 1").[3] The second case involves a cellular telephone with call number [REDACTED] (Target Telephone 2").[4] The Court summarizes below the relevant facts as the government presents them.

Facts

On June 18, 2014, the undersigned Magistrate Judge entered an order and issued a warrant in Case No. 14-mj-8116 ("Warrant 1"), allowing [REDACTED] to obtain precise location data concerning Target Telephone 1 for a period of thirty days. The order authorized the government to delay notification for 30 days following the authorized monitoring period. [REDACTED] executed Warrant 1 on June 19, 2014 and ceased monitoring on July 17, 2014.

Similarly, the Court entered an order and issued a warrant in Case No. 14-mj-8219 on October 29, 2014 ("Warrant 2"), allowing [REDACTED] to obtain precise location data concerning Target Telephone 2 for a period of thirty days. The order authorized the government to delay notification for 30 days following the authorized monitoring period. [REDACTED] executed Warrant 2 on October 30, 2014 and ceased monitoring on November 28, 2014.

The government states that the criminal investigation relative to these search warrants is ongoing and involves a continuing investigation into the distribution of controlled substances by the owner of the target telephones and other persons. The government contends there is reasonable cause to believe that immediate service of notice of the execution of these warrants to the owners of the property would have an adverse result, that is, "the serious jeopardizing of the ongoing criminal investigation[s] in th[ese] matter[s], as defined and provided by Title 18, United States Code, Sections 3103a(b) and (c) and 2705(a)(2)(E)."[5] Specifically, the government contends such jeopardy "would result from notifying a major target of these investigations that he is under current scrutiny by law enforcement personnel."[6]

The government acknowledges that its authority to delay serving notice of Warrant 1 to the owner of the property expired on August 16, 2014 (or, in its words, "a motion for delayed service of notice of Warrant 1 was due to be filed on August 17, 2014").[7] It further acknowledges that had the Court granted an extension on August 17, 2014, its motion for a second extension would have been due 90 days later, or on November 14, 2014.[8] The government admits that it did not meet the statutory deadlines to obtain authorization to extend delay of notice. Indeed, the government did not file its First Motion for Delayed Service of Notice of Warrant 1 until January 7, 2015, at which time the government electronically filed its motion under seal.[9]

Similarly, the government acknowledges that a motion for delayed service of notice of Warrant 2 was due to be filed on December 27, 2014.[10] The government admits that it did not meet the statutory deadline to obtain authorization to extend delay of notice. Indeed, the Motion for Delayed Service of Notice of Warrant 2 was not filed until January 7, 2015, at which time the government electronically filed its motion under seal.[11]

In each case, the First Motion for Delayed Service notes the date on which that motion was due and then states: "Due to a calendaring oversight, the United States failed to make a timely request for an order delaying service of notice."[12] Neither motion includes any further explanation for the delinquent filings.

After reviewing the motions, the Court contacted the responsible Assistant United States Attorney and asked him to provide legal authority whereby the Court could excuse the missed deadline due to calendaring oversight and grant the motions. After consulting with the Court, the government moved to withdraw the motions for delayed service of notice. The Court granted the motions to withdraw.[13]

The Court also granted the government's request for a January 23, 2015 deadline to refile its motions for delayed notice and to provide legal authority and argument which would excuse the delinquent filings. The government timely filed the Amended Motions and accompanying Supplemental Authorities in support of its "out-of-time ex parte request to postpone service."[14]

To date, the government has provided no notice to the owners of the property that Warrants 1 and 2 have been executed. The government requests that notice of the execution of these warrants be delayed for a period of ninety days, measured from January 7, 2015. The government states that, in the event the ongoing investigation of this matter continues for longer than 90 days, it will submit further requests for orders delaying notice of execution of these warrants in accordance with the provisions of 18 U.S.C. § 3103a(c).

The Government's Argument

The government summarizes its argument as follows. Had it complied with the statutory deadlines in these cases, its motions would have shown good cause to justify a 90-day delay in its statutory obligation to provide notice because on each of the missed deadlines (August 17, 2014, November 14, 2014, and December 27, 2014) ("the material dates"), the investigation was active and progressing, and notice to the subscriber would have jeopardized the ongoing investigation. Consequently, the government argues that this Court should find the government's error constituted excusable neglect and should grant the Amended Motions.

The government relies on Federal Rule of Criminal Procedure 45(b)(1) as the basis for its argument. Rule 45(b)(1) discusses a court's authority to grant belated requests for extensions of time based on excusable neglect. The rule states as follows:

When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party's motion made:
(A) before the originally prescribed or previously extended time expires; or
(B) after the time expires if the party failed to act because of excusable neglect.[15]

Legal Standards

The U.S. Supreme Court discussed the term "excusable neglect" at length in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership.[16] Although the Court was interpreting the meaning of "excusable neglect" in the context of a Federal Rule of Bankruptcy Procedure, [17] courts have applied the analysis in Pioneer Investment Services in criminal cases.[18] In Pioneer Investment Services, the Court noted that the ordinary meaning of "neglect" is "to give little attention or respect' to a matter, or... to leave undone or unattended to esp[ecially] through carelessness. '"[19] Although inadvertence, ignorance of the rules, or mistakes in construing the rules do not usually constitute excusable neglect, it "is a somewhat elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant."[20] The determination of whether excusable neglect exists "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission."[21] The burden of proof is on the moving party to show excusable neglect.[22] Courts are to consider the following four factors in determining whether the moving ...


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