United States v. Keleher, 516 F.Supp.3d 162

Background:

Defendant Julia Keleher is indicted for conspiracy, honest-services and wire fraud, and federal program bribery alleging she took official action to cede public land in exchange for discounted housing.
The government obtained copies of two email accounts via warrants premised on probable cause related to two DOE contract schemes (not the housing/cession scheme charged here).
The warrant materials included Attachment A (specific email addresses) and Attachment B (date range July 1, 2016 through application date and categories of evidence under 18 U.S.C. §§ 371, 666, 1341, 1343, 1346, involving Keleher, named persons, and others).
The affidavits stated a taint (filter) team would initially review data and “only provide the case agent with data that falls within the scope of the warrant.”
Keleher moved to suppress emails used in the current prosecution, arguing the warrants did not authorize seizure of emails related to a different alleged scheme and that the plain view exception did not apply.
The court held the warrants did not on their face authorize seizure of emails relating to the charged scheme but denied suppression because the plain view doctrine justified seizure: agents were lawfully positioned to view the emails and their incriminating nature was immediately apparent during the authorized search; the taint-team provision did not bar the searches.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the warrants authorized seizure of emails underlying the charged scheme	Warrants authorized searching the listed email accounts and reviewing emails within the date range for evidence of the listed federal offenses	Warrants were based on different DOE-contract schemes and therefore did not authorize seizure of emails about a separate housing/cession scheme	Warrants did not expressly authorize seizure of the emails at issue (warrant lacked particularity for that scheme)
Whether the plain view doctrine permitted seizure of the emails	Agents lawfully searched the accounts for authorized evidence and could examine emails; incriminating nature became apparent during the search, so plain view justified seizure	Emails were unrelated to the investigations described in the warrants; seizure was not inadvertent and incriminating character was not immediately apparent	Plain view exception applied: agents were lawfully positioned and objective facts during the search supported probable cause to seize the emails
Effect of the taint/filter-team provision in the affidavits	The taint-team commitment did not limit investigators’ lawful ability to search copies of account data; it required filtering of data that could not be searched	The taint-team statement limited prosecution access and effectively narrowed the warrant’s scope, requiring pre-search filtering or a limited search method	Court rejected defense view; the proviso did not impose a rare ex ante restriction and did not prevent lawful review/seizure by agents
Whether incriminating character had to be discovered inadvertently and at the moment first viewed	Probable cause for plain view is assessed at time of seizure/marking as relevant and can arise during review of a larger cache	The incriminating nature was not immediately apparent and discovery was not inadvertent, so plain view cannot justify seizure	Incriminating character may become apparent during the authorized search; inadvertence is not required and objective facts supported immediate apparentness at seizure time

Key Cases Cited

Marron v. United States, 275 U.S. 192 (particularity requirement prohibits general searches)
United States v. Hamie, 165 F.3d 80 (plain view two-element test)
United States v. Hernández-Mieses, 931 F.3d 134 (three-element plain view test articulated)
Horton v. California, 496 U.S. 128 (inadvertence not required for plain-view seizures)
Minnesota v. Dickerson, 508 U.S. 366 (incriminating character must be immediately apparent)
Andresen v. Maryland, 427 U.S. 463 (searches for papers may include cursory examination to identify seizable items)
United States v. Kuc, 737 F.3d 129 (particularity and limits on executing agents’ discretion)
United States v. Johnston, 784 F.2d 416 (probable cause assessed at time of seizure)
United States v. Taylor, 764 F. Supp. 2d 230 (email-account searches analogized to paper searches; ex ante filtering not required)
Collins v. Virginia, 138 S. Ct. 1663 (lawful right of access to the item is required for plain-view seizure)