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In re Application of United States

United States District Court, D. Kansas

March 31, 2017

IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN AUTHORIZING THE MONITORING OF MOBILE TRACKING DEVICE ASSIGNED TO CELLULAR TELEPHONE NUMBER [REDACTED] IN THE MATTER OF THE SEARCH OF THE CELLULAR TELEPHONE ASSIGNED CALL NUMBER [REDACTED]

          MEMORANDUM AND ORDER DENYING REQUEST FOR DELAY OF SERVICE NOTIFICATION

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the United States' Request for Delay of Service Notification Filed Out of Time (No. 15-M-6287-01-GEB, ECF No. 11; No. 16-M-6147-01-GEB, ECF No. 3) in the above-captioned sealed matters. For each case, 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), 18 U.S.C. § 2705, and 18 U.S.C. § 3103a(c). Although the government seeks an order regarding two separate cellular telephone numbers, it submitted one Request outlining the factual backgrounds related to each, and a single argument section pertaining to both cases. The first cellular telephone with call number [REDACTED] in Case No. 15-M-6287-01-GEB will be referred to as “Target Telephone 1”. The second cellular telephone with call number [REDACTED] in Case No. 16-M-6147-01-GEB will be referred to as “Target Telephone 2”. For the reasons set forth below, the Request is DENIED.

         I. Background

         The relevant facts, summarized below, have been gleaned from the government's Request and from the Court's review of the electronic docket.

         15-M-6287-01-GEB: Target Telephone 1

         On December 16, 2015, the government filed an application and the undersigned Magistrate Judge issued an Order (ECF No. 2) authorizing the monitoring of mobile tracking device features on Target Telephone 1, which initiated Case No. 15-M-6287-01-GEB. The Order authorized the use of mobile tracking device features for a period of 30 days, and then authorized a delay of service notification. Law enforcement executed the warrant and received location data. Subsequent orders authorizing the government to delay service notification for an additional 90 days were filed on February 12, 2016 (ECF No. 4); May 5, 2016 (ECF No. 6); August 4, 2016 (ECF No. 8); and October 24, 2016 (ECF No. 10). Pursuant to the most recent order, notice should have been served on the owner of Target Telephone 1 by January 23, 2017. The government candidly admits, due to its error, notice was not served.

         16-M-6147-01-GEB: Target Telephone 2

         As the government's investigation continued, on October 6, 2016, the undersigned Magistrate Judge signed a search warrant for Target Telephone 2 (ECF No. 2) and Case No. 16-M-6147-01-GEB was filed. The warrant authorized the seizure of all precise location information about the phone, for a period of thirty (30) days, and delayed notice of the warrant until 30 days after the collection authorized by the warrant was completed. Law enforcement executed the warrant and received location data beginning on October 6, 2016. At the end of 30 days, no additional request was made for Target Telephone 2 because, according to the government, its use by the target suspect was discontinued.

         The government reveals notice should have been served on the owner of Target Telephone 2 by December 5, 2016. However, due to the government's admitted error, notice was never served. The government contends, although Target Telephone 2 was not in use from mid-October 2016 to mid-January 2017, it is currently being used by another suspect, and there is probable cause to believe it is being used to commit violations of federal law. On February 7, 2017, Chief Judge J. Thomas Marten signed an order authorizing the interception of wire and electronic communications from the same cellular phone (see Case No. 16-cm-60077-JTM, sealed).[1]

         Both Target Telephones

         The ongoing criminal investigation, which forms the basis of both sealed matters and the government's current request, involves both cellular phones, and the individuals utilizing both phones are believed to be criminal associates. The investigation targets a large drug trafficking enterprise involving the users of the target telephones and multiple other individuals. Investigators believe if any members of the criminal association became aware of the use of cellular phone technology to obtain evidence, it is likely all members of the organization would discard or change their phones, which would seriously jeopardize the larger investigation.

         To date, the government has not provided notice to the owners of either target phone, [2] and now asks that the notification requirement be delayed for 90 additional days, measured from the date of the request (and presumably the date of any order granting the request), which was February 15, 2017.

         II. Relevant Authority

         The Federal Rules of Criminal Procedure and other federal statutes are implicated in the review of a request for delayed notification. Additionally, because the government claims the belated nature of its request should be excused, federal case law provides guidance to evaluate whether the government's delay is excusable. Each body of authority is briefly addressed.

         Federal Law Permitting Delayed Notice

         The authorities by which the government may seek delayed notification are longstanding and there is no question regarding their application. As a starting point, Federal Rule of Criminal Procedure 41(f) provides guidelines for the execution and return of authorized search and tracking warrants. Rule 41(f)(2)(C) requires the executing officer to serve a copy of the warrant on a person whose property was tracked within 10 days after tracking or data collection has ended. However, upthe government's request, Rule 41(f)(3) permits the court to delay any notice required under Rule 41 if the delay is authorized by statute. Here, the government asks the Court to authorize a delay under 18 U.S.C. § 3103a.

         Under 18 U.S.C. § 3103a, the court may issue a warrant “to search for and seize any property or material that constitutes evidence of a criminal offense in violation of any” federal laws.[3] Section 3013a(b)(1) permits any notice required for such a warrant, or a warrant issued under any other law, to “be delayed if the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in 18 U.S.C. § 2705. . .).” Although § 3103a(b)(3) requires “notice within a reasonable period not to exceed 30 days after the date of execution, ” 3103a(c) allows the court to extend the period of delay “for good cause shown, subject to the condition that extensions should only be granted upon an updated showing of the need for further delay and that each additional delay should be limited to periods of 90 days or less, unless the facts of the case justify a longer period of delay.” Invoked in 18 U.S.C. § 3103a is the definition of “adverse result” found in 18 U.S.C. § 2705(a)(2). This statute permits a governmental entity to delay notification and specifically defines the “adverse results” which could support a delay. An adverse result under § 2705 (and § 3013a) includes, among other potential concerns, “seriously jeopardizing an investigation.”[4]

         Excusable Neglect

         The government appropriately described its deadlines for notification under the above-referenced statutes, but admits it seeks delayed notification on a belated basis, as contemplated by Fed. R. Crim. P. 45. Under Rule 45(b)(1)(B), the court may extend the time for any required act on a motion made “after the time expires if the party failed to act because of excusable neglect.” Although reviewed in the context of a bankruptcy action, the seminal case examining the issue of “excusable neglect” is the U.S. Supreme Court case of Pioneer Investment Services Company v. Brunswick Associates Limited Partnership (“Pioneer”).[5]Courts in this district and the Tenth Circuit Court of Appeals have extended the Supreme Court's analysis in Pioneer to criminal matters.[6] In Pioneer, the Court acknowledged 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.'”[7] Although inadvertence, ignorance of the rules, or mistakes in construing the rules do not usually comprise excusable neglect, it “is a somewhat ‘elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of the movant.”[8]

         A decision regarding whether excusable neglect exists “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.”[9]

         The moving party shoulders the burden of proof to demonstrate excusable neglect, and courts must examine the following four factors to determine whether the moving party has met its burden:

(1) the danger of prejudice to the nonmoving party; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for that delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.[10]

         Among the factors analyzed by the court, the excuse given for the delay is of utmost importance.[11] The court may also “take into account whether the mistake was a single unintentional incident (as opposed to a pattern of deliberate dilatoriness and delay), and whether the attorney attempted to correct his action promptly after discovering the mistake.”[12]

         Recent District Guidance

         Recently, the concept of “excusable neglect” in the context of a delayed warrant notification was examined in depth in the District of Kansas in In the Matter of the Application of the U.S. for a Warrant, No. 14-MJ-8116-TJJ.[13] In her 2015 opinion, U.S. Magistrate Judge Teresa J. James was similarly faced with two motions by the government for delayed notice of the execution of warrants authorizing the acquisition of location data concerning cellular telephones. In both motions, the government admitted its belated requests occurred “due to a calendaring oversight.”[14] When analyzing the four factors set out in Pioneer, the court found two factors weighed in favor of the government: it found little danger of prejudice to the non-moving parties, [15] and the government presented the motions to the court in good faith.[16] However, the court was troubled by the length of the government's delay, and most importantly, the reason for the delay.

         Although Judge James noted a calendaring error would appear, on its face, to “fall in line” with district precedent generally excusing clerical calendaring errors, [17] it found the delay completely within the government's control. Most glaringly, the error was not “an isolated instance of the government failing to timely file a motion for extension of delay notice.”[18] Rather, the court outlined that, in its independent research, it ...


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