184 F.Supp.3d 1013
D. Kan.2016Background:
- FBI investigated accounts trading child pornography; agents obtained a November 2012 search warrant in the District of Maryland for contents of jesusweptone@gmail.com (data actually stored in Mountain View, CA).
- Execution of that warrant showed communications between jesusweptone@gmail.com and bigw1991@gmail.com (defendant Barber’s account), with numerous child-pornography images attached.
- Using those results, agents obtained a second Maryland warrant for contents of bigw1991@gmail.com; execution linked the account to Barber in Kansas and revealed dozens more images and communications indicating possession/distribution of child pornography.
- Based on the email evidence, a Kansas judge issued a warrant to search Barber’s residence; agents executed that search and seized evidence used to charge Barber.
- Barber moved to suppress: he challenged the Maryland warrants as issued without territorial jurisdiction (thus void ab initio), argued the evidence from his email and from the home search must be suppressed as fruits of illegal searches; the government invoked the SCA and the good-faith exception.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge jesusweptone@gmail.com warrant | Gov: evidence from that account is admissible and Barber lacks standing | Barber: challenges any upstream searches that produced evidence used against him | Court: Barber lacks a reasonable expectation of privacy in emails he sent once delivered; no standing to challenge that warrant |
| Whether Maryland magistrate had jurisdiction under SCA to issue warrant for CA-stored data | Gov: SCA authorizes a court with jurisdiction over the offense to issue warrants for remote data; magistrate in MD could issue | Barber: SCA requires territorial jurisdiction over the offense; MD lacked territorial jurisdiction | Court: "jurisdiction over the offense" means territorial jurisdiction; no evidence offense occurred in MD, so MD magistrate lacked jurisdiction for the warrant for bigw1991@gmail.com |
| Effect of jurisdictional defect — constitutional violation and remedy | Gov: SCA provides non-suppression remedies for statutory violations; alternatively, good-faith exception should apply | Barber: warrant void ab initio, constitutional violation; suppression warranted | Court: Warrant issued by a judge lacking jurisdiction is void ab initio; this produced a Fourth Amendment violation and good-faith exception does not apply to warrants void from inception; suppression appropriate |
| Fruit of the poisonous tree as to house search | Gov: house-warrant relied on multiple sources including untainted evidence; probable cause existed independently | Barber: house-warrant derived from tainted email search and must be suppressed | Court: On the record, probable cause for the residence search depended on information obtained from the invalid email warrant; evidence seized from the home is fruit of the poisonous tree and must be suppressed |
Key Cases Cited
- United States v. Lifshitz, 369 F.3d 127 (2d Cir.) (no expectation of privacy in emails after delivery)
- United States v. Warshak, 631 F.3d 266 (6th Cir.) (warrant required for ISP disclosure of subscriber email contents)
- Groh v. Ramirez, 540 U.S. 551 (warrant so deficient may render search "warrantless")
- United States v. Baker, 894 F.2d 1144 (10th Cir.) (warrant issued without authority may be void ab initio)
- United States v. Krueger, 809 F.3d 1109 (10th Cir.) (discussion recognizing void-warrant consequences)
- United States v. Sims, 428 F.3d 945 (10th Cir.) (warrant tainted by unconstitutionally obtained information can stand if probable cause remains absent that information)
- United States v. Basham, 268 F.3d 1199 (10th Cir.) (standard for probable cause to support search warrant)