333 F. Supp. 3d 172
E.D.N.Y2018Background
- Defendant was prosecuted domestically; he moved to suppress evidence obtained from (1) encrypted communication servers located in the Netherlands and (2) FlexiSpy spyware data and Amazon Cloud copies in the United States.
- FBI obtained Dutch-server communications via MLAT requests, Dutch surveillance/warrants, and copies transferred to FBI; Dutch servers hosted encrypted calls/texts.
- FBI/agents accessed FlexiSpy accounts through the vendor website, downloaded data to DVDs and to an FBI server, and obtained three warrants to search those copies and the Amazon Cloud data.
- Defendant argued Fourth and Fifth Amendment violations and Rule 41 defects; Government argued timeliness, lack of standing, reasonableness, good-faith reliance, and independent-source doctrines.
- Court found defendant’s suppression motions timely to decide, but concluded defendant failed to prove Fourth Amendment standing by sworn proof; denied both motions on the merits alternatively.
Issues
| Issue | Government's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of suppression motions | Motions untimely but Court may consider due to defendant's asserted good-faith basis for delay | Delay justified because unredacted discovery received after deadline | Court excused delay and considered motions on merits |
| Fourth Amendment standing for Dutch-server evidence | Defendant bears burden; no sworn evidence tying servers/accounts to him so no standing | Reliance on Special Agent Grey's affidavit and Government assertions to show ownership/expectation of privacy | No standing: defendant failed to submit sworn testimony showing legitimate expectation of privacy; motion denied on standing (alternative merits addressed) |
| Extraterritorial Fourth Amendment and reasonableness of Dutch searches | Even if Fourth Amendment applied, searches were reasonable; MLAT cooperation and exigency justified surveillance and copying; good-faith reliance warrants exclusionary-rule inapplicable | Searches violated Fourth Amendment (and possibly due process) because data was seized/copied abroad and U.S. agents directed foreign officials | Court: Verdugo-Urquidez bars Fourth Amendment protection for foreign resident whose servers were abroad absent substantial voluntary U.S. connections; even assuming application, searches were reasonable and good-faith; no due-process shock-the-conscience shown |
| FlexiSpy/Amazon data: digital duplication and warrant/Rule 41 challenges | Downloading/duplicating data were searches/searches or seizures but were reasonable; warrants were particularized and supported by probable cause; Rule 41 venue/procedural defects (if any) do not require suppression because officers acted in objective good faith and independent-source doctrine applies | Digital duplication and transfers were invalid searches/seizures; warrants facially/procedurally defective under Rule 41 so evidence must be suppressed | Court: Digital duplication constitutes a search but was reasonable here (escaped prisoner, risk of deletion, probable cause); warrants sufficiently particularized (Attachment A) and supported by independent probable cause; any Rule 41 errors were technical and officers acted in good faith, so suppression not warranted |
Key Cases Cited
- United States v. Verdugo-Urquidez, 494 U.S. 259 (Fourth Amendment does not apply to property owned by nonresident alien located abroad absent sufficient voluntary U.S. connections)
- Carpenter v. United States, 138 S. Ct. 2206 (acquisition of historical digital records can be a Fourth Amendment search)
- Kyllo v. United States, 533 U.S. 27 (search occurs when government violates a subjective expectation of privacy society recognizes as reasonable)
- Arizona v. Hicks, 480 U.S. 321 (recording/photographing visible information analyzed for seizure implications)
- United States v. Leon, 468 U.S. 897 (good-faith exception to exclusionary rule for reliance on magistrate-issued warrants)
- Davis v. United States, 564 U.S. 229 (exclusionary rule’s deterrent purpose and limits when officers act in objectively reasonable good faith)
- United States v. Martin, 157 F.3d 46 (searches/seizures to prevent loss/destruction of evidence may be reasonable)
- United States v. Ulbricht, 858 F.3d 71 (all-records/particularity analysis for electronic-account searches)