United States District Court, D. Massachusetts
[Copyrighted Material Omitted]
For Dzhokhar A. Tsarnaev, also known as Jahar Tsarni, Defendant: Miriam Conrad, LEAD ATTORNEY, Federal Public Defender Office, Boston, MA; Timothy G. Watkins, William W. Fick, LEAD ATTORNEYS, Federal Public Defender Office, District of Massachusetts, Boston, MA; David I. Bruck, PRO HAC VICE, Lexington, VA; Judy Clarke, PRO HAC VICE, Clarke & Rice, APC, San Diego, CA.
For American Civil Liberties Union Foundation of Massachusetts, Interested Party: Matthew Segal, LEAD ATTORNEY, American Civil Liberties Union, Boston, MA.
For USA, Plaintiff: Aloke Chakravarty, LEAD ATTORNEY, Donald L. Cabell, United States Attorney's Office MA, Boston, MA; Nadine Pellegrini, William D. Weinreb, LEAD ATTORNEYS, United States Attorney's Office, Boston, MA.
OPINION AND ORDER
George A. O'Toole, Jr., United States District Judge.
The defendant has moved to suppress the fruits of physical and digital searches that took place between April 19, 2013 and July 26, 2013. The government opposes the motions, and the defendant has filed a reply brief. The defendant has requested an evidentiary hearing, but as set forth below, a hearing is not necessary to resolve the present motions.
A. Physical Searches
On April 19, 2013, after the defendant's brother, Tamerlan Tsarnaev, had been identified after his death through fingerprint comparisons, federal agents obtained and executed a search warrant for 410 Norfolk Street Apartment 3, Cambridge, Massachusetts, identified as the residence of the defendant and his brother. Two days later on April 21, agents searched the defendant's dormitory room at the University of Massachusetts at Dartmouth (" UMass" ) pursuant to a warrant. The FBI obtained a second warrant to search
the Norfolk Street apartment, and that warrant was executed on May 5. On June 27, after the close of the academic year, UMass officials entered the defendant's dorm room and removed his personal items that remained there. An FBI agent was present and took notes and photographs of some of the items. On July 24, the FBI obtained warrants to search the dorm room itself, as well as certain items that had been removed from the room by UMass officials. Those warrants were executed on July 26.
B. Digital Searches
On April 19, 2013, a warrant issued authorizing the search of the defendant's and his brother's Yahoo! email accounts. On April 23, 2013, the FBI obtained a warrant authorizing the search of the defendant's Sony VAIO laptop computer and seizure of certain digital evidence located on the computer. A warrant issued on July 3, 2013, for two Google email (" Gmail" ) accounts registered to the defendant.
The defendant contends that the warrants authorizing searches of the Cambridge apartment at 410 Norfolk Street and the UMass Dartmouth dorm room were insufficiently particular, and alternatively, that at least some items seized fell outside the scope of the warrants and were improperly seized. He also challenges the FBI's warrantless entry into the dorm room on June 27, and further contends that the fruits of the July 26 search must be suppressed because the warrant was supported by observations made by the FBI agent during the allegedly improper June 27 entry.
The defendant also challenges the search of the Yahoo! email accounts and the Sony VAIO laptop on the ground that the warrants failed to establish probable cause, and he objects to the use of the fruits of those searches to establish probable cause to search his Gmail accounts. He further challenges the warrants authorizing the digital searches for purportedly failing to outline a search procedure to distinguish between responsive and irrelevant information, and he argues that the government's inspection of the digital information exceeded the scope of those warrants.
A. April 19, 2013 Search Warrant -- Norfolk Street Apartment
The April 19 warrant authorized the search of the " residence of Tamer[l]an Tsarnaev . . . and Dzhokhar Tsarnaev . . . located at 410 Norfolk Street, Apartment 3, Cambridge, Massachusetts 02139 ('the Target Residence')." (Def.'s Mot. to Suppress, Ex. 1 at 3 (dkt. no. 297-1) (under seal).) The warrant authorized the seizure of various items listed in its " Attachment B" :
All evidence inside the premises and curtilage located at the Target Residence, related to violations of 18 U.S.C. § § 2332(a) (Using and Conspiring to Use A Weapon of Mass. Destruction), 844(i) (Malicious Destruction of Property by Means of an Explosive Device Resulting in Death), 2119 (Carjacking), 1951 (Interference with Commerce by Violence), 924(c) (Use of a Weapon During
a Crime of Violence) and 371 (Conspiracy to Commit Offenses), including but not limited to:
1. Property, records, items, or other information, related to violations of the aforementioned statutes, including but not limited to, bomb making material and equipment, ammunition, weapons, explosive material, components of bomb delivery devices;
2. Property, records, or other information related to the ordering, purchasing, manufacturing, storage, and transportation of explosives;
3. Property, records, or other information related to the ordering, purchasing, manufacturing, storage, and transportation of firearms;
4. Property, records, or other information related to the ordering and purchasing of pressure cooker devices, BBs, nails, and other small metallic objects;
5. Property, records, or information related to the Boston Marathon;
6. Property, records, or information related to any plans to initiate or carry out any other attacks inside or outside the United States, or any records or information related to any past attacks;
7. Property, records, or information related to the state of mind and/or motive of Tamer[l]an and Dzhokhar to undertake the Boston Marathon bombings;
8. Property, records, or other information related to the identity of Tamer[l]an and Dzhokhar;
9. Property, records, or other information related to the identity of any individuals who were in contact with, or were associates of Tamer[l]an and Dzhokhar;
10. Property, records, or information, related to any organization, entity, or individual in any way affiliated with Tamer[l]an and Dzhokhar, that might have been involved in planning, encouraging, promoting the actions described herein;
11. Property, records, or other information, related to Tamer[l]an's and/or Dzhokhar's schedule of travel or travel documents;
12. Property, records, or information related to any bank records, checks, credit card bills, account information, and other financial records.
13. All digital evidence [as defined in the application and the warrant].
(Id. at 6-7.)
The warrant was executed the same day, and the FBI seized about 100 items.
A defendant has standing to challenge a search on Fourth Amendment grounds where he has both " a subjective expectation of privacy" in the place to be searched, and " society accepts that expectation as objectively reasonable." United States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008) (citing California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)). A subjective expectation of privacy is manifested where a defendant has " made some minimal effort to protect [his] property or activities from warrantless intrusions." United States v. Cardona-Sandoval, 6 F.3d 15, 20-21 (1st Cir. 1993) (collecting cases). In determining the reasonableness of an expectation of privacy, courts in this Circuit " consider ownership, possession, control, ability to exclude from the premises, or a legitimate presence on the premises." Id. at 21.
The government contends that the defendant has no standing to challenge the search of the Norfolk Street apartment because he had moved out of the apartment and into UMass Dartmouth student housing and was only an occasional overnight guest at the apartment. The government also argues that he abandoned any " residual expectation of privacy" on April 18, 2013, when he left the apartment, apparently not expecting to return alive.
To the contrary, I conclude that the defendant does have standing to challenge the Norfolk Street apartment search. The government's application for the warrant supports this conclusion. The application identified the apartment as the residence of both Tamerlan and Dzhokhar Tsarnaev and noted that public records indicate the same. Indeed, it was part of the government's probable cause calculus as to the defendant that because he resided at the apartment, things of his could likely be found there. Moreover, the idea that a college student has no reasonable expectation of privacy in a family residence while he is away at school and living in a dorm is, to say the least, a novel idea, for which the government offers no specific precedential support.
I also conclude that the defendant's conduct on April 18 did not amount to an unambiguous abandonment of his expectation of privacy in the apartment or in his belongings.
The Fourth Amendment instructs 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." The aim of the particularity requirement is to impede " general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A valid warrant: " (1) must supply enough information to guide and control the executing agent's judgment in selecting where to search and what to seize, and (2) cannot be too broad in the sense that it includes items that should not be seized." United States v. Kuc, 737 F.3d 129, 133 (1st Cir. 2013) (citing United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999)).
The defendant asserts that the categories of items to be searched for and seized listed in Attachment B were too broad and authorized the kind of general rummaging that the Fourth Amendment prohibits. There are two principal strands to his argument. First, he asserts that the use of the phrase " including but not limited to" at the end of the initial paragraph of Attachment B just before the list of categories of evidence effectively eliminated any restriction on what could be searched for. Kuc disposes of this argument. The language of the warrant " must be read in context." Id.; see also Andresen v. Maryland, 427 U.S. 463, 480-81, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (reading warrant clause in context). Here, as in Kuc, the warrant described the scope of the authorized search by reference to specific crimes as to which probable cause was said to exist. That reference had a limiting effect, requiring that any items seized be in some manner evidence of violation by the defendant of at least one of those statutes. See 737 F.3d at 131-32. Further, the general first paragraph is followed by a series of more specific categories describing the kind of evidence that might reasonably be expected to be found in a search focused on investigation of the enumerated crimes. It has long been recognized that " the 'general tail' of the search warrant will be construed so as not to defeat the 'particularity' of the main body of the warrant."
Id. at 133 (internal quotation marks omitted). The scope of the warrant is thus limited first by restricting the search to evidence of specified crimes. The list of categories further instructs the executing officer as to the kinds of things that can plausibly be considered evidence of the enumerated crimes. See United States v. Timpani, 665 F.2d 1, 5 (1st Cir. 1981) (" The warrant breaks the items into categories. Each item is plausibly related to the crime . . . that is specifically set out." ). The " including" phrase the defendant points to does not have the nullifying effect he suggests.
The second strand of the defendant's argument is that some of the enumerated categories, particularly paragraphs 8 though 12, are phrased so broadly that they give little guidance to an executing officer and thus permit an impermissible general search. This argument depends on isolating the language of those paragraphs from the context of the relevant language as a whole. Kuc and other cases instruct against that approach. It is true that some of the categories are broadly expressed and, viewed in isolation, would be too general. But in context they are properly understood as narrowed by the reference to particular criminal activity in the preamble paragraph of Attachment B. For example, paragraph 12 authorizes seizure of " any bank records, checks, credit card bills, account information, and other financial records." Read by itself in isolation, it would fail the particularity test. But read in context it authorizes the seizure of documents within the broad categories if they are evidence of the listed crimes. That is a significant narrowing of the scope of the authorized seizure, and it provides guidance to the executing officers as to what may and may not be seized.
It should be noted that the particularity requirement does not forbid any use of generic descriptions of items to be seized. See United States v. Cortellesso, 601 F.2d 28, 31 (1st Cir. 1979). Sometimes only generic description is possible, such as when law enforcement agents, while having probable cause to believe that evidence of a crime will be found in a particular place, simply lack information about what specific form that evidence will take. For example, agents might reasonably expect that a search of an apartment from which illegal drug distribution was occurring would yield documents evidencing the distribution, but yet be unable to give a more specific description of the documents. In another case, in contrast, agents investigating a particular kind of fraud might be able to be more specific and identify a particular kind of document to be seized. See e.g., United States v. Roche, 614 F.2d 6, 7 (1st Cir. 1980). There is no reason to think that the agent who applied for the warrant in this case had information available to him that could have narrowed the language of the more generic paragraphs without defeating the legitimate purpose of the warrant.
Even if some of the categories in the numbered paragraphs were too broadly phrased, the remedy would be directed to items seized under those categories, not the entire warrant. United States v. Morris, 977 F.2d 677, 682 (1st Cir. 1992) (citing United States v. Diaz, 841 F.2d 1, 4 (1st Cir. 1988)). The defendant's argument has been directed at the validity of the entire warrant; he has not argued for the suppression of particular items under an invalid subpart of the warrant.
Finally, even if the defendant's argument regarding the lack of adequate particularity had merit, the " good faith" doctrine announced in United States v. Leon,
468 U.S. 897, 923, 104 S.Ct. 3405,
82 L.Ed.2d 677 (1984), would justify denial of the motion to suppress. See United States v. ...