In re [REDACTED]@Gmail.com.
2014 U.S. Dist. LEXIS 181984
N.D. Cal.2014Background
- Government sought a warrant under Rule 41 to search a Gmail account at Google (Attachment A) and requested a "seize first, search second" execution with broad disclosure obligations placed on Google (Attachment B).
- The affidavit established probable cause that the Gmail account contained evidence of theft of government funds, but the warrant contained no date limitation and permitted broad retention/use of all returned data.
- The government requested delayed notice to the account holder under 18 U.S.C. § 3103a.
- The application mirrored a common DOJ template used for third-party electronic communications providers and sought comprehensive account contents, metadata, logs, and stored files.
- The magistrate noted prior denial of a substantially similar warrant by Magistrate Judge Facciola in D.C. and criticized the government for submitting the application in a different district after that denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ex ante approval of a "seize first, search second" procedure is permissible | Govt: such procedures are necessary for cloud-stored data to preserve technical accuracy and practicality | Implicit defense (and court concern): ex parte, pre-authorization risks overbreadth and lacks adversarial testing | Court: Ninth Circuit allows ex ante restrictions but judge must ensure reasonableness case-by-case (cites Hill); here requirements were not reasonable as proposed |
| Whether warrant as drafted satisfied Fourth Amendment limits on scope and minimization | Govt: probable cause supports warrant for account; broad disclosure needed to find evidence | Concern: lack of date restriction and no commitment to return/destroy irrelevant data makes seizure overbroad | Held: Probable cause exists for the account, but the proposed seizure/search terms and retention were constitutionally unreasonable given no date limit or minimization safeguards |
| Whether third-party provider (Google) should perform targeted search instead of full seizure | Govt: burdening provider with targeted searches is impractical and may force guesswork about search terms; better to allow government to seizing for later forensic review | Implicit counter: forcing provider to search invades provider neutrality and may be unduly burdensome; suspect's privacy implicated by provider-assisted searches | Held: Court acknowledges both sides; prior precedent supports either approach, but here the government's proposed unfettered seizure outweighed the asserted practical justifications |
| Whether seeking the warrant in a new district after denial elsewhere was improper judge-shopping | Govt: Rule 41 does not prohibit refiling in another district | Court/Defense: filing after denial elsewhere suggests judge-shopping and alternative remedies (mandamus or modified request) were available | Held: Court criticized the tactic as judge-shopping and viewed it unfavorably in assessing the application |
Key Cases Cited
- United States v. Hill, 459 F.3d 966 (9th Cir. 2006) (magistrate must assess reasonableness before approving broad computer seizure-and-search procedures)
- Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) (Fourth Amendment analysis generally requires case-specific factual development rather than purely ex ante rules)
- United States v. Bach, 310 F.3d 1063 (8th Cir. 2002) (upheld government-directed two-step search process involving a third party)
- United States v. Giberson, 527 F.3d 882 (9th Cir. 2008) (seizure of computers was within warrant scope where authorized documents were likely present)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to exclusionary rule)
Order: Application for search warrant denied; warrant and related documents sealed, redacted order to be filed publicly.