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United States v. Huntoon

United States District Court, D. Arizona

April 11, 2018

United States of America, Plaintiff,
v.
Michael Huntoon, Defendant.

          ORDER

          HONORABLE DAVID C. BURY UNITED STATE DISTRICT JUDGE

         Procedural Background

         On March 12, 2018, the Court denied the Defendant's Motion to Preclude evidence from and related to the Defendant's laptop computer, which was seized and searched in another case in Pinal County. The Court continued the trial date to Tuesday, April 17, 2018, to allow the Defendant time to have his expert examine the laptop and to afford him sufficient time to supplement his Motion to Suppress with any relevant evidence. The Court afforded the parties an opportunity to present evidence by referring the motion to Magistrate Judge Ferraro, along with a re-urged and related Motion for Disclosure.

         The Magistrate Judge held two hearings. At the first, March 15, 2018, hearing, the parties informed the Court that the Defendant's expert was at that very time examining the laptop and the examination would continue the next day too. Defendant's counsel advised the Court that she would then have to consult with her expert to determine whether she could withdraw the Motion for Disclosure of the Government's law enforcement software used to search the laptop or if her motion would stand. (TR (Doc. 106) 3/15/2018 at 14-15.) She would also know whether to supplement her Motion to Suppress with any evidence from the laptop, if any was discovered by her expert. Noting it would rely on the Defendant's expert testimony presented at the original hearing on January 4, 2018, on the Motion for Disclosure (TR (Doc. 74) 1/4/2018), the Magistrate Judge set an evidentiary hearing for March 20, 2018, to afford the parties an opportunity to supplement the record on both the discovery and suppression issues. See United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2007) (burden on proponent of motion to suppress to demonstrate that he has a reasonable expectation of privacy), see also Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (where a search is conducted without a warrant, the government must demonstrate by a preponderance of the evidence that an exception applies).

         Both parties supplemented their briefs related to the Motion to Suppress. (D's Supp. (Doc. 97); Gov't Resp. to Supp. (Doc. 100); Gov't Supp. (Doc. 102). On March 20, 2018, the Government filed a Motion to Continue, or Vacate as Moot, the hearing because Defendant had not disclosed the identity of the Defendant's expert nor the information he intended to elicit at the hearing. (Motion (Doc. 110)). Magistrate Judge Ferraro denied the motion. (Order (Doc. 111)). At the March 20, 2018, hearing neither party presented any evidence; argument by an attorney is not evidence. Adams v. United States, 152 F.2d 743, 744 (9th Cir. 1946), see also Germinaro v. Fidelity National Title Insurance Company, 2016 WL 5942236 *2 (Penn. October 13, 2016) (citations omitted) (explaining argument is not evidence, but is simply a characterization of the evidence).

         The Court has reviewed the record presented to the Magistrate Judge, which primarily consisted of the state record including the warrant and affidavit executed in the Pinal County case. See (Transcript of Record (TR) Motion to Suppress hearing 3/15/2018 (Doc. 106); (TR hearing con't 3/20/2018 (Doc. 115); (Gov't Response (Doc. 100) at Ex. E: Maricopa County Search Warrant and Affidavit, Ex. F: TR 6/20/2017 hearing in Maricopa County Superior Court, Motion to Suppress, Ex. G: TR hearing con't 9/1/2017). On March 23, 2018, the Magistrate Judge issued the Report and Recommendation (R&R). (R&R (Doc. 122)). He recommends that the Court deny the motion. For the reasons explained below, the Court adopts the recommendation and denies the Motion to Suppress the laptop computer evidence.

         On March 13, 2018, during the pendency of this referral to the Magistrate Judge, the Government filed a Notice of Intent under Rule 414 and 404(b) to present evidence from a Lenovo computer tower which was seized and searched in this case. (Notice (Doc. 98)). The Defendant filed a Motion to Suppress the Lenovo computer. Because of the Government's late Notice, see (Order (Doc. 61) (setting motions in limine deadline for March 5, 2018)), the Defendant's expert had not yet examined it nor had the Government filed a Response to the Motion to Suppress it. The Magistrate Judge could not address the Motion to Suppress the Lenovo computer in his R&R. The motion is now fully briefed. The Court grants the Motion to Suppress the Lenovo computer, without reaching the merits. For reasons explained below, the Court finds the Defendant's disclosure of the Lenovo computer evidence, made on the eve of trial, is late, and it would be prejudicial to the Defendant to allow its introduction at trial on April 17, 2018.

         The Report and Recommendation

         The duties of the district court in connection with a R&R are set forth in Rule 59 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed. R. Crim. P. 59(b)(3); 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.'” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no objection is filed, the district court need not review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). Therefore, to the extent that no objection has been made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation).

         The parties were sent copies of the R&R and afforded an opportunity to object. Given the fast approaching trial date and the extensive briefing already existing related to the Motion to Suppress the laptop, the Court called for expedited briefing of Objections. (Order (Doc. 128) at 3) (allowing 7 days, with 2 for a Reply)). The Motion to Suppress the laptop computer evidence is now fully briefed. The parties have likewise completed briefing the Motion to Suppress the Lenovo computer.

         The Fourth Amendment

         A Fourth Amendment search occurs if the government, to obtain information, trespasses on a person's property to obtain that information. A Fourth Amendment search also occurs if the government violates a person's subjective expectation of privacy when such expectation is one that society is prepared to consider reasonable if infringed. Florida v. Jardines, 569 U.S. 1, 10 (2013) (describing reasonable-expectation test as “added to, not substituted for, ” the traditional property-based understanding of the Fourth Amendment) see also (R&R (Doc. 122) at 6 (citing Illinois v. Andreas, 463 U.S. 765, 771 (1983)).

         “The touchstone of the Fourth Amendment is reasonableness . . ..” United States v. Knights, 534 U.S. 112, 118 (2001)). “[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness.” Illinois v. Gates, 462 U.S. 213, 267 (1983) (White, J., concurring in judgment)). Nevertheless, both the scope of a seizure permitted by a warrant, and the reasonableness of government conduct in executing a valid warrant, can present Fourth Amendment issues. United States v. Ganias, 824 F.3d 199, 209-210 and n. 21-22 (2nd Cir. 2016) (en banc) (describing scope of the seizure as limited by the prohibition on “general warrants, ” and the manner of execution of a warrant as being subject to later judicial review for reasonableness).

         In Ganias, the court considered whether to suppress evidence found by the government pursuant to a 2006 search warrant issued to search mirrored images of hard drives seized and searched pursuant to a 2003 search warrant issued in an investigation into different conduct by a different individual. The court denied suppression based on the government's good faith execution of the second search warrant, but noted an awkward fit of container cases such as United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) in the context of computer searches. Ganias. 824 F.3d at 208-221, see also (D's Objection (Doc. 131) at 6-11). The court in Ganias suggested that courts grappling with applying the Fourth Amendment to digital data soon recognize the distinctions, and should as best they can remain mindful of the privacy interests that necessarily inform the analysis. Id. at 218.

         To do this, the Ganias court underscored the importance of a fully developed record regarding the technological specifics of the case in answering Fourth Amendment questions. Id. at 217. And, while resolving the Ganias case on the issue of good faith, it concluded “moreover, that [it] should not decide [the Fourth Amendment] question on the present record before it because the record did not permit a full assessment of the complex and rapidly evolving technological issues and the significant privacy concerns relevant to the inquiry. Id. at 220-221.

         The Court is confident that an adequately developed record exists here to decide the Defendant's Fourth Amendment challenge to the search of the laptop computer, but finds that the record is not sufficiently developed to decide the merits of the Motion to Suppress the Lenovo computer.

         The Magistrate Judge's R&R lays out the facts relevant to the Motion to Suppress the laptop evidence, (R&R (Doc. 122) at 1-3), and the Court does not repeat them. Suffice it to say that the Defendant's motion hinges on two assertions: 1) the state search warrant lacked probable cause because the affidavit contained knowingly false information, and 2) the federal search of the mirror image of the laptop is presumptively unreasonable because the Government did not get a search warrant. Id. at 3. In his Objection, the Defendant adds a new argument not presented to the Magistrate Judge challenging the state search warrant as over-broad and lacking particularity. (D's Objection (Doc. 131) at 13-17.)

         1. Motion to Suppress Laptop Computer and request for Franks[1] Hearing

         The Court is aware that in respect to the first question it was previously urged and rejected in the state court case. But, “[i]n determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-224 (1960).

         The duty of a court reviewing whether or not a warrant is supported by probable cause “is simply to ensure that the magistrate had a 'substantial basis for... conclud[ing]' that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983); see also United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (“Normally, we do not 'flyspeck' the affidavit supporting a search warrant through de novo review; rather, the magistrate judge's determination should be paid great deference.” (internal quotation marks omitted)). “Probable cause exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.'” United States v. Grubbs, 547 U.S. 90, 95 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “Whether there is a fair probability depends upon the totality of the circumstances, including reasonable inferences, and is a commonsense, practical question. Neither certainty nor a preponderance of the evidence is required.” United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (internal quotes omitted)). In the Ninth Circuit, a magistrate judge's determination that probable cause exists is accorded “great deference.” Id.

         In the Defendant's Objection, he complains that the Magistrate Judge erred by not conducting a de novo review. (Objection (Doc. 131) at 4 (citing United States v. Elliott,893 F.2d 220, 222 (9th Cir. 1990)). The court in Elliott distinguished between a magistrate's determination that sufficient probable cause exists to issue a search warrant, which will not be overturned unless it is clearly erroneous, and a district court's review of the motion to suppress allegations of false statements and their effect on probable cause, which is an independent determination of the consequences of a fraud on the issuing magistrate-- which the magistrate was not in a position to evaluate. The latter is subject to de novo review while the former is not. The Magistrate Judge ...


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