United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, United States District Judge
the Court is defendant's Motion to Suppress Items
Unconstitutionally Seized from his Residence, Backpack,
Pickup Truck, and Worplace [sic] Locker ("Motion to
Suppress") [Dkt. No. 69] and Motion for Reconsideration
of March 10, 2017 Order ("Motion for
Reconsideration") [Dkt. No. 84]. The Motion to Suppress
has been fully briefed, oral argument has been held, and for
the reasons stated in open court and more fully developed in
this Memorandum Opinion, the motion has been denied. Mar. 10,
2017 Order [Dkt. No. 78]. Defendant's Motion for
Reconsideration has also been fully briefed and, because oral
argument will not assist the decisional process, the motion
has been resolved on the papers. For the reasons stated in
this Memorandum Opinion, the Motion for Reconsideration will
Criminal Complaint Affidavit
August 2, 2016, a magistrate judge issued an arrest warrant
for the defendant based on a criminal complaint alleging
that, from October 2014 through July 28, 2016, Nicholas Young
("Young" or "the defendant") attempted to
provide material support to a designated foreign terrorist
organization ("FTO"), specifically the Islamic
State of Iraq and the Levant ("ISIL"), in violation
of 18 U.S.C. § 2339B ("Criminal Complaint").
[Dkt. No. 1]. The complaint was supported by an affidavit
signed by FBI Special Agent David Martinez ("Criminal
Complaint Affidavit"), who stated that al-Qa'ida in
Iraq ("AQI"), also known as ISIL and the Islamic
State of Iraq and al-Sham ("ISIS"), has been a
designated FTO since October 15, 2004 and that Sunni
extremists as well as foreign fighters from Western countries
have been traveling to Syria, usually through Turkey, to join
ISIL. [Dkt. No. 2] ¶¶ 5, 7.
affidavit described how Young, a police officer with the
Washington Metropolitan Area Transit Authority
("WMATA") since 2003, had been interviewed in
September 2010 by Federal Bureau of Investigation
("FBI") agents regarding his connection to Zachary
Chesser, who had been arrested in 2010 for attempting to
provide material support to al-Shabaab, another designated
FTO. Id. ¶¶ 8, 9. A few months later, in
January 2011, Young told an undercover law enforcement
officer ("UCO") that he was wary of surveillance,
frequently took the battery out of his cell phone when he
wanted to go somewhere to talk, and had several "burner
phones." Id. ¶ 10, 16. Young also told the
UCO that he once aimed an AK-47 style rifle out of his window
while scanning for law enforcement, that he was angry with
the FBI for contacting his family and co-workers before
interviewing him about Chesser, and that he was stockpiling
weapons to use against law enforcement if they ever attempted
to search his home. Id. ¶ 10, 15, 19. According
to the UCO, Young said if someone ever betrayed him, their
head would be in a cinder block at the bottom of Lake
Braddock. Id. ¶ 11. In addition, Young spoke of
kidnapping and torturing the FBI Special Agent who questioned
him. Id. ¶ 15. On March 21, 2011, Young and the
UCO met with Amine El Khalifi, who was later charged with
attempting to use a weapon of mass destruction (an improvised
explosive device or "IED") to detonate himself in
the U.S. Capitol Building. Id. ¶ 13, 22. Over a
meal, they discussed the fundamentals of marksmanship and
Young and the UCO cautioned Khalifi to be careful about his
online posts, as Chesser had recently been arrested for
online activity. Id. ¶ 14. The three met again
on April 1, 2011, during which Khalifi spoke of how shaheeds
(which the affidavit translates as "martyrs; in this
context, those who die while conducting violent jihad")
are sent to the highest levels of heaven and Young said that
one of the greatest shaheeds is a convert who fights the
kaffirs [infidels or unbelievers] for the Muslims."
Id. ¶ 17. At another meal with the UCO and
Khalifi on April 4, 2011, Young said that he would never talk
about the things he was going to do; instead people would
find out after it happened. Id. ¶ 19.
interview with the FBI in September 2011, Young admitted that
he had traveled to Libya twice in 2011 and had been with
rebels attempting to overthrow the Qaddafl regime.
Id. ¶ 20. Baggage searches by Customs and
Border Protection on Young's outbound flights revealed
that he carried body armor, a Kevlar helmet, and several
other military style items. Id.
2014, Young met on 20 separate occasions with an FBI
Confidential Human Source ("CHS"), who was posing
as a U.S. military reservist of Middle Eastern descent who
was eager to become more religious and leave the military as
a result of having to fight against Muslims during his
deployment to Iraq. Id. ¶ 24. In August 2014,
the CHS told Young he wanted to join ISIS and Young advised
him to watch out for informants and avoid discussing his
plans with others. Id. ¶ 25. Young also gave
him suggestions on how to travel to ISIS territory without
being detained by law enforcement. Id. On September
11, 2014, Young showed the CHS a pro-ISIL video on YouTube,
id ¶ 26, and throughout September and October
gave him additional advice on how to evade authorities while
joining ISIL, id ¶ 26-28. During an October 2,
2014 conversation, Young suggested that the CHS contact
representatives of ISIL through social media using a burner
phone and advised him on the types of gear to pack.
Id. ¶ 28. As part of a conversation recorded by
the CHS on October 24, 2014, Young and the CHS discussed the
CHS's imminent departure from the United States and his
cover story. Id. ¶ 33. Earlier, Young had
offered to send a text a few weeks after the CHS left asking
whether he was back from his vacation in the hope that the
text would be found by law enforcement if they started
investigating the CHS. Id. ¶ 32. On October 25,
2014, Young and the CHS went to a FedEx Office store and set
up email accounts specifically for communicating with each
other. Id. ¶ 34.
led Young to believe that he left the United States and
succeeded in joining ISIL. Id. ¶ 35. In
reality, the CHS had no further contact with Young and all
communications between Young and the CHS's email account
were between Young and FBI personnel posing as the CHS,
referred to as "UC02." Id. Young texted
the CHS on November 20, 2014 saying, "Salam. Hope you
had a good vacation." That same day, the UC02 (posing as
the CHS) sent an email to Young confirming that he had
"made it to dawlah, " another name for ISIL.
Id. ¶¶ 2, 36. On December 17, 2014, Young
emailed the CHS, congratulating him for making it to ISIL.
Id. ¶ 37. Another email from Young on January
9, 2015 approvingly referenced the murders of the Charlie
Hebdo magazine staff in Paris. Id. ¶ 38.
Between February and July 2015, the two continued to email
and Young told the CHS to let him know if he met any of the
"Abo Salem Suhada Brig" mujahedeen with whom Young
said he served when he was in Libya. Id. ¶ 39.
The FBI understood "Abo Salem Suhada Brig" to refer
to the Abu Salim Martyrs Brigade, a militia group in Libya
with "possible links to al-Qaeda." Id.
March 21 and 22, 2015, while Young was in email communication
with the CHS, he attended an off-duty weapons training hosted
by another WMATA officer. Id. ¶ 41. The officer
observed Young bring a large amount of ammunition to the
training and operate four firearms ranging from an Egyptian
AK-47 to a .45 caliber pistol. Id. Young stated that
he owned at least three other guns, including a World War
II-era Russian Negant rifle, and said he wanted to buy a
crate of Negant rifles to hand out if things went bad.
Id. On June 1, 2015, Young was interviewed at his
residence by law enforcement regarding an allegation of
domestic violence. Id. ¶ 42. During the
interview, Young admitted that he had dressed up as
"Jihadi Kohn" for Halloween in 2014, periodically
dressed up as a Nazi, had a Nazi eagle tattooed on his neck,
and collected Nazi memorabilia. Id.
15, 2015, Young emailed the CHS to ask him to get advice from
his commanders on how Young could move his money out of the
United States, noting that law enforcement officials were
probably watching his bank account. Id. ¶ 40.
enforcement interviewed Young again on December 3, 2015,
ostensibly in connection with an investigation into the
whereabouts of the CHS. Id. ¶ 43. Young stated
that the CHS had left for a vacation in Turkey approximately
one year before. Id. He also said he had not been in
contact with the CHS since October 2014 and denied talking
with the CHS about Syria. Id. Law enforcement asked
if he had the CHS's email address and Young supplied one
but it was not the email address through which Young had been
in contact with the CHS. Id. Two days later, on
December 5, 2015, Young was interviewed by law enforcement
again and said essentially the same thing. Id.
January 14, 2016, the UC02 (posing as the CHS) emailed Young
and said, among other things, that the CHS's mother had
been questioned about the CHS's whereabouts. Id.
¶ 45. Young replied on February 17, 2016, explaining
that his response was delayed because he had to be careful
about his communications, and sharing that he too had been
questioned by law enforcement about the CHS. Id.
That same day, Young replied to an earlier email from the CHS
and commented on the Paris attacks where 130 people were
killed and 400 injured, which had occurred just days earlier,
saying the attackers were misunderstood and this gave the
West a taste of what Muslims experience every day.
Id. ¶ 46.
UC02 (still posing as the CHS) sent Young an email on April
18, 2016, stating that in the future Young could communicate
with him through a particular mobile messaging application
and giving Young his account name (referenced herein as
"CHS's MM Account"). Id. ¶ 47. On
July 14, 2016, CHS's MM Account received a message from
an account set up through the same messaging application.
Id. ¶ 48. Young was the only person to whom the
FBI had provided the address for the CHS's MM Account.
Id. ¶ 49. The following day, on July 15, 2016,
Young emailed the CHS notifying him that Young had messaged
him "on the app." Id. For these reasons,
the affidavit refers to the account used to send the July 14,
2016 message as "Young's First MM Account."
18, 2016, the CHS messaged Young through Young's First MM
Account and told Young that he could support ISIS by
supplying gift cards, which ISIS could use to set up mobile
messaging accounts to talk to individuals in the West seeking
to join ISIS. The message also explained that ISIS was no
longer receiving gift card codes from individuals in the
United Kingdom who had previously supplied them and had only
a few codes remaining. Id. ¶¶ 47-50. Young
responded on July 21, 2016, asking why the cards were no
longer being sent by the "brothers in UK" and
saying "Inshallah more codes will come your way."
Id. ¶ 51. On July 28, 2016, the CHS received a
message from a mobile messaging account not previously used
by Young. Id. ¶ 52. The message included
twenty-two gift card codes. Id. ¶ 53. The CHS
messaged Young's First MM Account saying "[m]ay
Allah reward you for your efforts" and received a
response from the account that sent the codes saying,
"Glad it came through, " and explaining that the
device used to send that message was going to be destroyed.
Id. ¶¶ 54-55. The affidavit refers to the
account used to send the codes as Young's Second MM
Account. Id. ¶ 53.
affidavit represented, "Based on the foregoing, there is
probable cause to believe that, between in or about October
2014, and on or about July 28, 2016, in Fairfax County in the
Eastern District of Virginia, Nicholas Young knowingly
attempted to provide material support and resources to a
designated [FTO], namely [ISIL], in violation of 18 U.S.C.
§ 2339B." Id. ¶ 56.
with authorizing the arrest warrant based on that criminal
complaint, the same magistrate judge authorized a search
warrant, supported by a separate affidavit by Special Agent
David Martinez ("Residence Affidavit"), Def. Ex. 1
[Dkt. No. 69-3] at 5-12, for the search of Young's
residence ("Residence Warrant"). Id. at 1.
According to the search warrant application, the purpose of
the search was to find evidence of attempt to provide
material support to a designated foreign terrorist
organization, in violation of § 2339B. Id. at
4. Unlike other search warrants described below, the
Residence Warrant also sought evidence related to two
additional offenses: obstruction of justice, in violation of
18 U.S.C. § 1512, and false statements, in violation of
18 U.S.C. § 1001. Id. "Attachment A"
to the warrant described the ten categories of items to be
seized. Id. at 3. These categories included:
1. All records and documents, however maintained, that
concern the international transfer of money or assets, or the
procurement of any item that may have been involved in or in
support of terrorist or violent acts, including photographs,
correspondence, and safe deposit keys.
2. All records and documents, however maintained, referring
or relating to identities or aliases of Nicholas Young.
3. All records and documents, however maintained, referring
or relating to past travel or planned travel by Nicholas
Young, including airline tickets, credit card bills, bank
records, checks, itineraries, passports, and visas.
4. Any and all records, documents, invoices and materials
that concern any accounts with any internet service provider;
5. All records, documents, and paraphernalia, however
maintained, relating to ISIL/ISIS (or any of its aliases),
other designated terrorist groups, or any individual or group
engaged in terrorism or terrorist activity, or communications
with or involving such groups and/or individuals.
6. All contact lists, however maintained (including but not
limited to names, addresses, phone numbers, Internet accounts
or usernames, photographs or other identifying information)
of individuals associated with Nicholas Young and/or foreign
7. All records and documents, however maintained, referring
or relating to the purchase or use of gift cards, encryption
programs, or applications that may be used for clandestine or
8. All records and documents, however maintained, referring
or relating to any storage facilities, safety deposit boxes,
mailboxes, or other locations where any of the foregoing
items may be located.
9. Any and all firearms, ammunition, body armor,
military-style equipment, or explosive materials or their
10. Any communications or electronic device capable of
storing any of the items to be seized, including but not
limited to all cellular phones, smart phones, electronic data
processing and storage devices, computers and computer
systems, keyboards and other associated peripherals, Central
Processing Units, external and/or internal drives, portable
drives, external and internal storage devices such as
magnetic tapes and/or disks or diskettes, together with
system documentation, operating logs, software and manuals,
passwords, test keys, encryption codes or similar codes that
are necessary to access computer programs, and the stored
contents of the items described in this paragraph, which may
be searched for only the items listed above.
establishing probable cause for the search, the Residence
Affidavit incorporated all of the representations in the
Criminal Complaint Affidavit, Residence Aff. ¶ 1, and
supplied the following additional facts: An individual who
was formerly a close friend of Young's, referred to as
"CW, " consented to the search and copying of
CW's electronic devices, which included numerous
communications with Young as well as photographs.
Id. ¶ 5. The CW had been at Young's
residence on many occasions and reported that Young
maintained several firearms in a gun safe in his residence.
Id. According to the affidavit, "Young once
asked CW about the chemical components of gun powder, but
that CW refused to answer the question for fear that Young
would attempt to make something in CW's residence."
affiant represented that based on his training and experience
he had reason to believe that "individuals generally
keep important documents and financial records in their home
or office" and because Young did not have a permanent
office, "he likely kept his important records at this
residence." Id. ¶ 9. The Residence
Affidavit also explained that "records relating to
income, assets, and expenditures, ... are likely to be
relevant to his purchase of gift cards for transmission to
CHS and ISIL in July 2016, as well as assets he sought to
send overseas in 2015. Such records are also likely to be
relevant to his contacts with terrorist groups in the past,
and his past travel or attempts to travel overseas to fight
on behalf of terrorist groups." Id. Because
Young set up an email account for the CHS that would be
difficult to trace, used a burner phone to transmit the gift
card codes, and used two mobile messaging accounts to
communicate with the CHS's MM Account, the affidavit
represented that Young "uses electronic devices and is
sophisticated about computer matters." Id.
¶ 11. The affidavit then listed the types of information
that are usually stored on electronic devices, including data
regarding deleted files, and requested authority to seize
Young's electronic devices and conduct off-site searches
of these devices. Id. ¶¶ 14-15.
was arrested on August 3, 2016 for violation of 18 U.S.C.
§ 2339B, attempting to provide material support to a
designated terrorist group. [Dkt. No. 8]. After Young's
arrest, a K-9 officer and dog did a sweep of the exterior of
his personal vehicle, a Dodge Dakota truck ("Dodge
truck"), and the dog gave a positive alert for hazardous
material. Gov. Ex. 3, [Dkt. No. 75-3] ¶ 12. The vehicle
was then inventoried and transported to a secure location on
a flatbed truck. Id. The inventory of the Dodge
truck's contents included "one Kel-Tec .380 firearm,
an empty magazine, six hollow point rounds, and $1, 065 in
cash." Id. When the flatbed truck arrived at
the secure location, the driver noticed a cell phone lying on
the flatbed of the truck below and between the rear wheels of
Young's Dodge truck. Id. ¶ 13. It was a
black AT&T ZTE Go Phone matching the packaging found in
Young's backpack. Id.
August 11, 2016, a different magistrate judge approved four
search warrants for (1) the contents of Young's backpack,
including a black Casio G'z One flip-phone, and a black
Amazon tablet ("Backpack Warrant"), Gov. Ex. 3
[Dkt. No. 75-3]; (2) Young's Dodge truck ("Truck
Warrant"), Gov. Ex. 4 pkt. No. 75-4]; (3) a black
AT&T ZTE GoPhone found on the bed of the flatbed truck
that had transported Young's Dodge truck on August 3,
2016 ("GoPhone Warrant"), Gov. Ex. 5 pkt. No.
75-5]; and (4) Young's workplace locker at the
Franconia/Springfield Metropolitan Transit Police
Department's District 2 substation ("Locker
Warrant"), Gov. Ex. 6 [Dkt. No. 75-6]. Each warrant
application represented that the search was related to a
violation of 18 U.S.C. § 2339B, attempting to provide
material support to a designated FTO, and described the items
to be seized in "Attachment A, " which mirrored the
Residence Warrant's ten categories of items to be seized.
See Gov. Ex. 3 at 12; Gov. Ex. 4 at 12; Gov. Ex. 5 at 12;
Gov. Ex. 6 at 12.
four search warrants were supported by a single combined
affidavit by FBI Special Agent Nicholas Caslen ("Caslen
Affidavit"), Gov. Ex. 3 at 2-11, which expressly
incorporated the Criminal Complaint Affidavit, id
¶ 3. The Caslen Affidavit added that Young was arrested
at WMATA Headquarters on August 3, 2016 and that during a
search incident to arrest officers found a folded piece of
paper bearing the name of the mobile messaging account
provider and the ...