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United States v. Brewer

United States District Court, W.D. Virginia, Roanoke Division

March 21, 2018

UNITED STATES OF AMERICA
v.
AKEEM ALEXIS BREWER, ET AL.

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE

         Defendant Akeem Alexis Brewer ("Brewer") moves to modify or quash a search warrant for two Apple iPhones seized during his arrest for alleged distribution of heroin and conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841 and 846. See Mot. to Quash or Modify Search Warrant, ECF No. 31. The search warrant authorized searching the phones for records relating to violations of 21 U.S.C. §§ 841 and 846, evidence of attribution showing who used or owned the devices at the time of the violations, stored photographs and videos depicting evidence of the violations, and records evidencing use of Internet Protocol addresses and internet activity. See Appl. and Aff. for Search Warrant, 7:17-mj-00129, ECF No. 1; Search and Seizure Warrant, 7:17-mj-00129, ECF No. 2.

         During the course of briefing, the parties stipulated to the facts relevant to the application for and execution of the search warrant.[1] The government sought a search warrant on November 15, 2017 to conduct a forensic examination of the two seized iPhones and to compel Brewer's fingerprints to unlock the phones with touch Id. The court granted the warrant application on the same day. During the execution of the warrant, the government gained access to the first iPhone ("Device 1") through fingerprint access; Brewer and counsel agreed to provide the pass code for Device 1 to accommodate the government's access when Device 1 timed out. The second iPhone ("Device 2") did not have fingerprint access. The government gained access to Device 2 by using Device l's pass code. The government conceded that the warrant did not grant access to Device 2 because it was not touch ID enabled, and that it "does not intend to view, examine or otherwise use the contents of Device 2." Parties' Stipulated Statement of Fact Pertaining to Def.'s Mot. to Quash, ECF No. 116, at 4. Pending this court's review of the warrant, the government also agreed to not examine the contents of Device l.[2]

         The court held a hearing on March 6, 2018 regarding whether to modify or quash the warrant. Counsel for Brewer limited his objection to the search warrant being overbroad and not sufficiently particular, and did not contest the search warrant's grant of fingerprint access to the devices via Touch Id. For Paragraphs 1 and 3 of Attachment B to the warrant- regarding records relating to violations of 21 U.S.C. §§ 841 and 846 and stored photographs and videos depicting evidence of the violations-Brewer argued that the government had no way to review these items without opening all of the files, and thus such a review is too broad given the nature of electronic files stored on phones.[3] Brewer requested use of a search protocol and abandonment of the plain view doctrine, as outlined in Judge Kozinski's concurrence to United States v. Comprehensive Drug Testing. Inc.. 621 F.3d 1162, 1178- 1180 (9th Cir. 2010). For Paragraph 4, regarding records of Internet Protocol addresses and internet activity, Brewer argued that the request was overbroad because it was not limited to the violations at issue. Brewer also sought destruction of Device 2's copied data and destruction or return of all non-relevant items from Device 1.

         The government confirmed the sequestration of the evidence from both devices and its agreement to not review the downloaded contents of Device 2. As for Device 1, the government argued that the only way to review Device 1 's contents is to open the files and subsequently not use items irrelevant to the warrant. The government noted that the only case law cited by Brewer in support of a search protocol is a non-binding Ninth Circuit concurrence, and that the widely adopted approach is to determine admissibility after the evidence has been searched. As for Paragraph 4 regarding internet activity, the government contends that the search is not overly broad because it is only looking for evidence of criminal activity, such as travel arrangements relating to the drug conspiracy and the possible purchase of assault style weapons believed to be a part of the criminal activity. Pursuant to Federal Rule of Criminal Procedure 41(c), which is cited on the first page of the warrant, the government only seeks evidence of a crime for all aspects of the warrant. The government also represented that it is willing to destroy the copy of Device 2's electronic data, but wanted to maintain physical custody of the iPhone in the event the government had the opportunity to lawfully search it later in the investigation.

         Given Brewer's evolving argument from the time of the motion to the time of the hearing, the court notes that the following issues are currently before it: (1) whether Paragraphs 1 and 3 of Attachment B are sufficiently particular, including whether there is a need to impose search protocols, and (2) whether Paragraph 4 is overly broad.

         I.

         As to the first issue, it is clear that Paragraphs 1 and 3 of the warrant, specifying the search for records relating to violations of 21 U.S.C. §§ 841 and 846 and stored photographs and videos depicting evidence of the violations, are sufficiently particular.[4] The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a "general, exploratory rummaging." Coolidge v. New Hampshire. 403 U.S. 443, 467 (1971). "This requirement ensures that the search is confined in scope to particularly described evidence relating to a specific crime for which there is probable cause." United States v. Oloyede. 982 F.2d 133, 138 (4th Cir. 1992). There is probable cause for the search of evidence relating to violations of 21 U.S.C. §§ 841 and 846, as the application contends that Brewer used Device 1 in his alleged drug-distribution activities. The government set forth in its warrant application that the devices were linked to the alleged drug violations. The search warrant's review of records, stored photographs, and videos also are limited to the specific violations at issue. Brewer does not appear to contest the limited scope of Paragraphs 1 and 3, but requests search protocols to limit the government's review of Device 1 so that the government cannot review records, photographs, and videos that do not reflect violations of 21 U.S.C. §§ 841 and 846 and further requests that a third-party conduct the review.

         But this is not a case like Comprehensive Drug Testing, where the Ninth Circuit debated whether search protocols and third-party data review should be employed. Comprehensive Drug Testing arose out of the steroid scandal that rocked Major League Baseball in the early part of this century. As part of a collective bargaining agreement, players agreed to suspicionless drug testing of all players in an effort to determine whether ongoing testing was necessary. Although federal authorities learned of ten players who had tested positive in the Comprehensive Drug Testing program, law enforcement obtained a search warrant for Comprehensive Drug Testing's facility in Long Beach, California. When the warrant was executed, the government seized and promptly reviewed the drug testing records for hundreds of Major League Baseball players.

         Motions to quash were filed, and the dispute was ultimately resolved by an en banc decision of the Ninth Circuit Court of Appeals. In a concurring opinion, Judge Kozinski offered some "guidance about how to deal with searches of electronically stored data." Id. at 1178. Judge Kozinski recommended employing a process that separated data defined by the warrant from other data, such as seizing only information belonging to people named in the warrant (rather than unnamed parties) or using hashing tools to identify well-known illegal files (such as child pornography) without opening the files themselves. Id. at 1179. "To that end, the warrant application should normally include, or the issuing judicial officer should insert, a protocol for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown. The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation." Id.

         Concurring in part and dissenting in part, Judge Callahan disagreed. Id. at 1183-92. Judge Callahan viewed the suggestions as overbroad and unsupported by legal authority, referencing United States v. Giberson. 527 F.3d 882, 887-88 (9th Or. 2008), where the Ninth Circuit declined to impose heightened Fourth Amendment protections in computer search cases as a result of a computer's ability to store large amounts of potentially intermingled information, and stating that such heightened protections must be "based on a principle that is not technology-specific." Id. at 1183. Moreover, Judge Callahan cautioned against jettisoning the plain view doctrine in digital evidence cases and found no legal support for requiring use of specialized personnel or an independent third party.

         This case presents none of the concerns raised in Comprehensive Drug Testing. Comprehensive Drug Testing involved the government's seizure and review of digital test data of hundreds of individuals not implicated in the government's steroid use investigation. Here, in contrast, the cell phone at issue was located on Brewer's person and was alleged by the government to have been used by him in furtherance of the drug conspiracy. In this case, the court does not believe that the warrant must specify search term protocols or require that the search be done by independent third parties. The risk of commingling of data of uninvolved third parties present in Comprehensive Drug Testing is simply lacking here.

         As such, the court will DENY the motion to quash the warrant as regards Paragraphs 1 and 3 of Attachment B, finding those paragraphs to be sufficiently particular and in ...


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