UNITED STATES of America v. Ali Mohamed ALI, Defendant.
Criminal No. 11-0106.
United States District Court, District of Columbia.
May 25, 2012.
Matthew J. Peed, Timothy Ryan Clinton, Clinton & Peed, PLLC, Washington, DC, Brian C. Brook, Simon & Partners LLP, New York, NY, for Defendant.
ELLEN SEGAL HUVELLE, District Judge.
Defendant Ali Mohamed Ali is charged with conspiracy, aiding and abetting, piracy, and hostage taking as a result of the hijacking of the M/V CEC Future, a Bahamian-flagged cargo ship owned by Clipper Group A/S, a Danish company.1 On November 7, 2008, the CEC Future was sailing in the Gulf of Aden, off the coast of Yemen, when it was seized by Somali pirates. The pirates forced the crew to navigate the ship to Point Raas Binna, near the Somali coast. There, sometime on November 9 or 10, Ali boarded the ship before it sailed to waters near Eyl, Somalia. The government alleges that while the ship was under the pirates’ control, Ali communicated ransom demands from the pirates to Clipper. Initially, Ali communicated with “Steven,” a negotiator hired by Clipper, but as the incident wore on, Ali began communicating directly with Per Gullestrup, Clipper‘s CEO. The government further alleges that, as Ali negotiated a ransom of $1.7 million for the release of the ship, he also negotiated a separate payment of $75,000 for himself. On January 16, 2009, after Clipper paid the $1.7 million, Ali and the pirates disembarked the ship. Ali allegedly received the $75,000 from Clipper on or about January 27, 2009.
Before the Court are two motions in limine brought by the government seeking to preclude the admission of certain evidence relating to Ali‘s mental state;2 defendant‘s motion for the admission of other acts evidence;3 and defendant‘s motion to suppress evidence which he alleges was illegally obtained.4 For the reasons stated
FACTUAL BACKGROUND
Ali was born in Yemen on June 26, 1962. (Def. Mot. to Suppress, Ex. 2 at 1.) He spent most of his childhood in Mogadishu, Somalia, before coming to the United States in December 1981 on a student visa and subsequently attaining asylee status. [redacted]
In 2001, Ali moved to Memphis, Tennessee, where he worked for a wireless telephone company. [redacted]
In 2005, Ali moved to Washington, D.C., where he worked as a taxi cab driver. [redacted]
[redacted]
[redacted]
Among his purported anti-piracy efforts, Ali includes his role in the CEC Future incident, as well as in a number of other piracy incidents. In June 2008, before the CEC Future was hijacked, Somali pirates attacked the Rockall, and took its owners, a German couple, to shore in Somalia and held them there. (Defendant‘s Motion for a Deposition Under Federal Rule of Criminal Procedure 15, March 6, 2012 [Dkt. No. 128] (under seal), Ex. 2 at 1.) Ali was asked by a friend to assist in negotiating the couple‘s release. (Id. at 1-2; see Def. Mot. to Suppress at 6-7.) In July 2008, Ali traveled to the area where they were being held, camped with them, brought them medicine and supplies, and acted as a go-between for the German government and the kidnappers. (Id.; see Def. Mot. for Pretrial Rel., Exs. 1, 2, 10, 11.) The couple was released in August 2008 after a $1 million ransom was paid. (Def. Mot. to Suppress, Ex. 2 at 3.) [redacted]
A day or two after Ali boarded the CEC Future, on November 11 or 12, 2008, Somali pirates captured the M/V Karagöl, a chemical tanker owned by a Turkish company, and forced its captain to navigate the ship to an area near Eyl where it dropped anchor next to the CEC Future. (Id., Ex. 2 at 4; Government‘s Motion in Limine to Introduce Direct Evidence of the Conspiracy, March 2, 2012 [Dkt. No. 117] (“Gov‘t Karagöl Mot.“) at 2.) Ali alleges that one of the CEC Future pirates ordered Ali to board the Karagöl and translate demands from those pirates to the Turkish company. (Def. Mot. to Suppress, Ex. 2 at 4, 6; see id., Ex. 9 at 1268; Gov‘t Karagöl Mot. at 2-3.) Ali allegedly made many trips back-and-forth between the CEC Future and the Karagöl, but his role with regard to the latter ship ended in late November 2008.5 (Id. at 3.)
In February 2009, after the release of the CEC Future, Per Gullestrup asked Ali for help in reaching the pirates who had taken another ship, the Stolt Strength, and the two corresponded about that piracy for a number of months. (See Def. Mot. for Pretrial Rel., Exs. 4, 16, 17, 18, 33.) [re-
In November 2010, while Ali was still in Somalia, he was charged by a criminal complaint filed in this Court for his role aboard the CEC Future, and a warrant for his arrest was issued. (Gov‘t Suppression Opp‘n at 1; see Complaint, Nov. 10, 2010 [Dkt. No. 1]; Arrest Warrant, Nov. 10, 2010 [Dkt. No. 52].) Ali was formally indicted on April 15, 2011. (See Indictment, April 15, 2011 [Dkt. No. 6].)7 About a year prior, in June 2010, Ali had been appointed the Director General of the Ministry of Education in Somaliland, a self-declared republic within Somalia. (Def. Mot. for Pretrial Rel., Ex. 41 at 2.) In March 2011, Ali received an email which purported to be from a United States foundation inviting him to attend a conference on education in Raleigh, North Carolina. (Def. Mot. to Suppress at 14.) When Ali traveled to the United States for the conference, he was arrested upon his arrival at Dulles International Airport on April 20, 2011. (Id. at 1.)
ANALYSIS
I. THE ADMISSIBILITY OF CERTAIN EVIDENCE PERTAINING TO ALI‘S INTENT
The parties agree that Ali‘s “‘intent in conducting the negotiations for the pirates [aboard the CEC Future] is expected to be the primary issue at trial.‘” (Def. Omnibus Opp‘n at 3 (emphasis in the original) (quoting “Gov‘t Karagöl Mot.” at 9).) Ali seeks to introduce evidence to show that he opposed the goals of the pirates and acted “to shorten the crew‘s ordeal, protect their lives, and collect intelligence on pirates for the benefit of the United States and the seafaring community.” (Id. at 3.)8 The government has moved to exclude such evidence, arguing that it is has no bearing on whether Ali intended to commit the acts alleged in the indictment.
Under the
Ali is charged with conspiracy to commit piracy under the law of nations (Count One) in violation of
Conspiracy and aiding and abetting are inchoate crimes. United States v. Bailey, 444 U.S. 394, 405, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (conspiracy is an “in-
Courts sometimes refer to this “heightened mental state” as one of “specific intent.” See United States v. Moore, 651 F.3d 30, 92 (D.C.Cir.2011) (“An aiding and abetting conviction require[s] proof that [the defendant] had ... the specific intent to facilitate the commission of a crime by another.” (internal quotation marks and citation omitted)); United States v. Childress, 58 F.3d 693, 707 (D.C.Cir.1995) (“[C]onspiracy is a ‘specific intent’ crime“).12 Specific intent, in turn, is described as encompassing notions of purpose. See Bailey, 444 U.S. at 405 (“In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent.“).
“[T]he specific intent required for the crime of conspiracy is ... the intent to advance or further the unlawful object of the conspiracy.” Childress, 58 F.3d at 708 (alterations in the original) (quoting United States v. Haldeman, 559 F.2d 31, 112 (D.C.Cir.1976)). Accordingly, in order to convict Ali of conspiracy, the government must prove beyond a reasonable doubt that Ali acted with the “specific intent to further the conspiracy‘s objective.” Id.
The second superseding indictment alleges that the “purpose and object” of the conspiracy to commit piracy (Count One) was “to profit and make money by detaining the ship, crew and cargo of the M/V CEC Future and depriving the lawful owners of control over and the value of the ship and the cargo until ransom was paid.” (Ind. at 2.) The indictment does not specifically define the objective of the conspiracy to commit hostage taking (Count Three), but alleges that Ali and others
did conspire and agree with one another, to seize, detain and threaten to kill, to injure, and to continue to detain the crew of the M/V CEC Future, in order to compel ... Clipper Group ... to pay a ransom, consisting of 1.7 million U.S. dollars delivered to the ship, and a separate payment of 75,000 U.S. dollars delivered via a wire transfer to a bank account, as an explicit condition for the release of the M/V CEC Future, its crew and cargo.
(Ind. at 6.)
Therefore, in order to convict Ali of conspiracy, the government must establish that Ali acted with the specific intent, or the “purposeful intent,” Childress, 58 F.3d at 707 (emphasis in the original), to a) profit and make money by detaining the CEC Future, its crew, and its cargo, and by depriving Clipper of control over the ship, and of the ship‘s value, until ransom was paid (Count One); and to b) compel Clipper to pay a ransom by seizing, detaining, and threatening to kill, injure, and continue to detain the CEC Future‘s crew (Count Three). (Ind. at 2, 6.) The government bears the burden of proving beyond a reasonable doubt that Ali “consciously desire[d] [these] result[s].” Bailey, 444 U.S. at 404 (internal quota-
Similarly, “[i]n order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.‘” Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938) (Hand, J.)) (cited in Moore, 651 F.3d at 92). “All the words used” in this definition—“even the most colorless, ‘abet‘—carry an implication of purposive attitude.” Peoni, 100 F.2d at 402 (emphasis added). Therefore, in order to convict Ali of aiding and abetting piracy under the law of nations (Count Two) and hostage taking (Count Four), the government must prove that Ali acted with “the specific intent to facilitate the commission of [these] crime[s] by []other[s].” Moore, 651 F.3d at 92 (internal quotation marks and citation omitted).
Ali argues that the evidence which the government seeks to prevent him from introducing is directly relevant to whether he acted with these intentions onboard the CEC Future. Specifically, he claims that evidence [redacted] and of his role in other piracy incidents both before and after the CEC Future hijacking would undercut the government‘s case as to his mens rea and further would, as to post-CEC Future events, show a lack of consciousness of guilt.13 The government, on the other hand, characterizes such evidence as purporting to show Ali‘s “good motive,” and argues that it is irrelevant to his defense. (Gov‘t Omnibus Mot. at 4.)
Court decisions, treatises, and law reviews are rife with debates about the relationship between specific intent and motive, and the relevance (if any) of the latter in a criminal case.14 The Court need
The Court further concludes that although this evidence pertains to Ali‘s “other act[s],” it is nonetheless “admissible” for the “purpose” of negating the government‘s showing of Ali‘s “intent.”
1) ... is relevant in that it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,”
Fed.R.Evid. 401 ; 2) the fact of consequence to which the evidence is directed relates to a matter in issue other than the defendant‘s character or propensity to commit crime; and 3) the evidence is sufficient to support a jury finding that the defendant committed the other ... act.
United States v. Bowie, 232 F.3d 923, 930 (D.C.Cir.2000) (some citations omitted). The evidence
However, the
For the reasons stated above and discussed at hearings on April 11, 2012, and May 17, 2012, the Court will grant Ali‘s 404(b) motion. Specifically, the Court will admit evidence pertaining to Ali‘s role in incidents of piracy involving the ships Rockall, Karagöl, Stolt Strength, Maersk Alabama, Lynn Rival, and De Xin Hai under Rule 404(b). (See also Order, April 12, 2012 [Dkt. No. 164] (under seal) at 2.) In addition, having already determined that it is relevant, the Court concludes that evidence of the following passes the Rule 403 balancing test and will be admitted:
[redacted]
(Def. Omnibus Opp‘n at 9-10 n. 9.) [redacted]17,18
II. DEFENDANT‘S MOTION TO SUPPRESS
Ali challenges six search warrants and the searches and seizures conducted pursuant to them.19 He argues that the
A. Legal principles
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Although the Supreme Court “has applied the exclusionary rule to certain Fourth Amendment violations,” it “has never ... interpreted” that provision as “‘proscrib[ing] the introduction of illegally seized evidence in all proceedings or against all persons.‘” United States v. Spencer, 530 F.3d 1003, 1006 (D.C.Cir.2008) (quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). To the contrary, the Court has “repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation.” Herring, 555 U.S. at 141 (collecting cases). Rather, the judicially created exclusionary rule is designed to safeguard Fourth Amendment rights generally through its deterrent effect, and therefore applies only where it results in appreciable deterrence. Id. at 139, 141.
Furthermore, “[r]eal deterrent value is a necessary condition for exclusion, but it is not a sufficient one,” because “[t]he analysis must also account for the substantial social costs generated” by the rule. Davis, 131 S.Ct. at 2427 (internal quotation marks and citations omitted). The rule “almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence.” Id. Therefore, the Supreme Court has emphasized that “[f]or exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Id.
“In a line of cases beginning with” Leon, the Supreme Court has calibrated its “cost-benefit analysis” according to “the flagrancy of the police misconduct at issue” and has instructed that “the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct.” Id. (internal quotation marks and alterations omitted); see Leon, 468 U.S. at 909. When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Davis, 131 S.Ct. at 2427 (citing Herring, 555 U.S. at 144). But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and “exclusion cannot ‘pay its way.‘” Id. at 2427-28 (quoting Leon, 468 U.S. at 908 n. 6).
Pursuant to Leon, courts determine the objective reasonableness of the police‘s reliance on a warrant by considering “whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.‘” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n. 23).20 If such an officer would have discerned the search‘s illegality because “the affidavit supporting the warrant was ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,‘” then suppression remains appropriate. Spencer, 530 F.3d at 1007 (quoting Leon, 468 U.S. at 923). Supreme Court “precedents make clear, however, that [this] threshold is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 1245, 182 L.Ed.2d 47 (2012).
Probable cause is “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a net set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In determining whether probable cause exists,
[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed.
Id. at 238-39 (some alterations in the original) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)). Thus, the Supreme Court has “described probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
In this “totality-of-the-circumstances analysis,” Gates, 462 U.S. at 238, courts consider, inter alia, whether the facts in the underlying affidavit are “so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Yet, pursuant to Leon, an affidavit‘s facts are only “too stale,” and the exclusionary rule only applies, if the officers executing the warrant “‘could not have harbored an objectively reasonable belief in the existence of probable cause.‘” United States v. Webb, 255 F.3d 890, 905 (D.C.Cir.2001) (quoting Leon, 468 U.S. at 926). Courts “give ‘great deference’ to the issuing judge‘s probable-cause determination ... [a]nd a police officer is ordinarily entitled to rely on the magistrate‘s conclusion.” Spencer, 530 F.3d at 1006 (quoting Gates, 462 U.S. at 236).
Objectively reasonable reliance by the executing officers does not, however, bar application of the exclusionary rule in all instances. Suppression remains appropriate under Leon “if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Id. at 1007 (quoting Leon, 468 U.S. at 923); see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).21 Yet, “[a]n affidavit offered in support of a search warrant enjoys a ‘presumption of validity.‘” United States v. Maynard, 615 F.3d 544, 550 (D.C.Cir.2010) (quoting Franks, 438 U.S. at 171). In order to invoke Franks, a defendant must
make[] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [that] the allegedly false statement [was] necessary to the finding of probable cause.
438 U.S. at 155-56. Upon making this substantial showing, which must be “more than conclusory” and “accompanied by an offer of proof,” id. at 171, “the Fourth Amendment requires that a hearing be held.” Id. at 156. If the defendant proves his allegations “by a preponderance of the evidence, and, with the affidavit‘s false material set to one side, the affidavit‘s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded.” Id.
“[U]nder certain circumstances,” a defendant may establish that he is entitled to a Franks hearing on the basis of “material omissions.” Spencer, 530 F.3d at 1007 (citing United States v. Johnson, 696 F.2d 115, 118 n. 21 (D.C.Cir.1982)); see Burke v. Town of Walpole, 405 F.3d 66, 81 (1st Cir.2005) (“the intentional or reckless omission of material exculpatory facts from information presented to a magistrate may ... amount to a Fourth Amendment violation” (citing DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir.1990))). Indeed, “[b]y reporting less than the total story, an affiant can manipulate the inference a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning.” United States v. Stanert, 762 F.2d 775, 781 (9th Cir.1985)
Therefore, a defendant seeking to obtain a Franks hearing must show that (1) the affidavit contained false statements or omitted certain facts; (2) the false statements or omitted facts were material to the finding of probable cause; and (3) the false statements or omissions were made knowingly and intentionally, or with reckless disregard for the truth. United States v. Becton, 601 F.3d 588, 594 (D.C.Cir.2010); Spencer, 530 F.3d at 1007.
With regard to the second factor, allegedly false information in an affidavit is material only if, when it is “set to one side, the affidavit‘s remaining content is insufficient to establish probable cause.” Franks, 438 U.S. at 156. By corollary, omitted facts are only material if “their inclusion in the affidavit would defeat probable cause.” Spencer, 530 F.3d at 1007 (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990)); see United States v. Davis, 617 F.2d 677, 694 (D.C.Cir.1979) (omitted facts are only material if their “recitation would have tipped the balance against a finding of probable cause“). Accordingly, for a defendant to be entitled to a Franks hearing, “[a] substantial preliminary showing that the affidavit contained reckless or deliberate falsities and omissions must be followed by a substantial showing that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause.” United States v. McNeese, 901 F.2d 585, 596 (7th Cir.1990), overruled on other grounds by United States v. Nance, 236 F.3d 820 (7th Cir.2000).
With regard to the third factor, ”Franks protects against” false statements and “omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.” Colkley, 899 F.2d at 301 (emphasis omitted). “Under Franks, negligent police miscommunications in the course of acquiring a warrant do not provide a basis to rescind a warrant and render a search ... invalid.” Herring, 555 U.S. at 145. Courts are
In Davis, the D.C. Circuit defined recklessness as it pertains to alleged false statements with recourse to “precedents in the area of libel and the [F]irst [A]mendment,” where “reckless disregard for the truth requires a showing that” the speaker “‘in fact entertained serious doubts as to the truth of his publication.‘” Id. at 694 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). At issue in Davis was whether the defendant was entitled to a Franks hearing where the affidavit included statements made by an informant whom the affiant knew to have been “under coercion” when he made them. Id. Importing the “subjective test” for reckless disregard from the libel area, the court held that a defendant could succeed “by showing actual deliberation” on behalf of the affiant or “by demonstrating that there existed ‘obvious reasons to doubt the veracity of the informant or the accuracy of his reports.‘” Id. (quoting St. Amant, 390 U.S. at 732). Since the D.C. Circuit decided Davis, “most Circuits that have had occasion to address the issue have adopted a” similar test, which asks whether the affiant “in fact entertained serious doubts as to the truth of the ... statements” which the defendant alleges to be false. United States v. Kunen, 323 F.Supp.2d 390, 395 (E.D.N.Y.2004) (internal quotation marks, alterations, and citation omitted).
Determining whether an omission was made recklessly presents particular difficulties. On the one hand, “[a]ll storytelling involves an element of selectivity,” and courts “cannot demand that police officers relate the entire history of events leading up to a warrant application with every potentially evocative detail that would interest a novelist or gossip.” Wilson, 212 F.3d at 787. To do so “would make the process of applying for a search warrant a cumbersome procedure inimical to effective law enforcement” and therefore “might encourage rather than discourage improper police behavior: facing ever more stringent requirements for obtaining warrants, police might forego applying for one whenever they think they might have a tenable case for proceeding without one.” Davis, 617 F.2d at 694 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).
“On the other hand, one of the reasons for requiring a neutral magistrate to evaluate probable cause is that an uninterested party is presumably better suited to review and evaluate the facts than an officer pursuing a lead.” Wilson, 212 F.3d at 787. As the Supreme Court has emphasized,
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.... When the right of privacy must reasonably yield to the right of search is, as a rule, to be decid-
ed by a judicial officer, not by a policeman or Government enforcement agent.
Payton v. New York, 445 U.S. 573, 586 n. 24, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). Thus, consistent with the Fourth Amendment, “a police officer cannot make unilateral decisions about the materiality of information, or, after satisfying him or herself that probable cause exists, merely inform the magistrate or judge of inculpatory evidence.” Wilson, 212 F.3d at 787.
Balancing these competing concerns, the Third Circuit chose to “follow the common sense approach” of the Eighth Circuit, id., and held that “omissions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would know that a judge would want to know.” Id. at 783; see United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993) (inferring reckless disregard based on the “highly relevant” nature of the omitted information); United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) (noting inference permissible when omission would have been “clearly critical” to the issuing judge‘s probable cause determination) (quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir.1980)). It is clear that courts cannot “infer recklessness solely from [an affiant‘s] alleged awareness” of exculpatory material. Davis, 617 F.2d at 694. Yet, the weight of legal authority permits the inference “where the omitted information was critical to the probable cause determination.” Burke, 405 F.3d at 81 (quoting Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.1991); citing Wilson, 212 F.3d at 783); accord Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.1997); DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir.1990).23
With these principles in mind, the Court proceeds to address Ali‘s specific arguments for suppression. To begin, the Court will consider two issues that concern many of the underlying affidavits: first,
B. Exculpatory facts
Ali‘s primary challenge to the sufficiency of the affidavits is born of the fact that he maintains a view of his role on the CEC Future that is completely at odds with the government‘s characterization of the evidence. Ali‘s chief defense at trial will be that he intended neither to conspire with, nor to aid and abet, the pirates. The government, on the other hand, argues that Ali had the requisite intent. The jury will make the ultimate determination of Ali‘s mens rea. But, in his motion to suppress, Ali presses a related argument. He claims that the affidavits underlying certain warrants omitted facts which he alleges show his innocent intent,24 and that these omissions entitle him to a Franks hearing.
In so arguing, however, Ali has confused the showing required of an affidavit for probable cause—with that required of the government to prove his guilt. “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Gates, 462 U.S. at 245 n. 13, 103 S.Ct. 2317; see Jones, 362 U.S. at 270, 80 S.Ct. 725 (the “difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search” is “large” (quoting Brinegar v. United States, 338 U.S. 160, 172, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949))). And “[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 558, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (alteration in the original) (quoting United States v. Mfrs. Nat‘l Bank of Detroit, 536 F.2d 699, 703 (6th Cir.1976)).
While Ali maintains that his own involvement in the piracy of the CEC Future was not criminal, he does not contest that what occurred was a crime. Therefore, the only question is whether there was a “fair probability that contraband or evidence of [that] crime [would] be found in” the warrants’ targets. Gates, 462 U.S. at 238, 103 S.Ct. 2317; see Zurcher, 436 U.S. at 558, 98 S.Ct. 1970; Mays, 134 F.3d at 814 (“[S]earch warrants are directed, not at persons, but at property where there is probable cause to believe that evidence of a crime will be found.“).25 On these facts, Ali‘s intent was not relevant to the magistrates’ determinations of probable cause.
The Fourth Circuit‘s recent decision in Sennett v. United States, 667 F.3d 531 (4th Cir.2012), is illustrative. Laura Sennett was “a photojournalist who claim[ed] a special interest in covering protests, political demonstrations, and grassroots activism.” Id. at 532 (internal quotation marks omitted). In April 2008, she “received a phone tip that there would be a demonstration during the International Monetary Fund‘s (‘IMF‘) annual spring meeting at the Four Seasons Hotel in Washington, D.C.” Id. at 533. She “arrived at the Four Seasons at approximately 2:30 a.m. on April 12, 2008, in order to photograph the protest,” allegedly “unaware that the purported protesters planned to destroy property or commit other criminal acts.” Id. Nonetheless, the protest turned violent. “[I]ndividuals entered the hotel lobby and threw firecrackers and smoke-generating pyrotechnic devices, along with paint-filled balloons, at various targets,” and “shattered a large glass window by the entrance” before fleeing the scene. Id.
The hotel‘s security camera footage revealed a woman “using a small handheld camera to videotape or photograph the protest.” Id. The photographer was dressed similarly to the protestors. Id. “Like several others present, the photographer . . . remained outside during the incident in the lobby. And, after the people who damaged the lobby exited the hotel, the unidentified female fled from the hotel with or in the same general direction as the protesters.” Id.
Eventually, Sennett was identified as the female photographer, id., and a warrant was issued for a search of her residence for evidence of suspected criminal activity that occurred during the protest. Id. at 534. When the warrant was executed, the agents “seized dozens of items, including an external hard drive allegedly containing more than 7,000 photographs, two computers, several cameras, and several camera memory cards.” Id. “Sennett was never arrested or charged with any crimes relating to” the protest. Id.
For instance, Sennett argue[d] that she believed there was a noncriminal purpose for protesting at night—such as waking up the IMF delegates—rather than concealing criminal acts under cover of darkness. Moreover, Sennett argue[d] that she fled not out of a consciousness of guilt, but because she was frightened for her safety.
Id. at 536. The Fourth Circuit, however, upheld the grant of summary judgment in favor of the government:
Such plausible explanations, based on Sennett‘s subjective mindset . . . do not factor into the probable cause calculus. “[I]n considering the totality of the circumstances, [a defendant‘s] innocent explanations for his odd behavior cannot eliminate the suspicious facts from the probable cause calculus. The test is not whether the conduct under question is consistent with innocent behavior; law enforcement officers do not have to rule out the possibility of innocent behavior.” Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir.2009) (internal quotation marks omitted). . . . [Furthermore,] [a]lthough Sennett‘s occupation provides an innocent explanation for her appearance in the security camera footage, the other facts nevertheless permitted [the affiant] to reasonably conclude that Sennett was involved in the acts of vandalism. See United States v. Booker, 612 F.3d 596, 601 (7th Cir.2010) (“The possibility of an innocent explanation does not vitiate properly established probable cause.“).
Sennett, 667 F.3d at 536 (emphasis added, some alterations in the original);27 cf. Pennsylvania v. Dunlap, 555 U.S. 964, 129 S.Ct. 448, 448, 172 L.Ed.2d 321 (2008) (Roberts, C.J., dissenting from the denial of a cert. petition) (“an officer is not required to eliminate all innocent explanations for a suspicious set of facts to have probable cause to make an arrest” (citing Gates, 462 U.S. at 244 n. 13, 103 S.Ct. 2317)). Here, any innocent explanations
Under Franks, “the intentional or reckless omission of material exculpatory facts from information presented to a magistrate may . . . amount to a Fourth Amendment violation,” Burke v. Town of Walpole, 405 F.3d 66, 81 (1st Cir. 2005) (emphasis added), and omitted facts are “material” only if “their inclusion in the affidavit would defeat probable cause.” United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008) (internal quotation marks omitted). The exculpatory facts that Ali claims were omitted from the affidavits (see supra n. 24) speak to his intent and nothing more.28 Because Ali‘s intent was not at issue, those facts were not material to the magistrates’ findings of probable cause and Ali is not entitled to a Franks hearing on the basis of their omission. 438 U.S. at 156, 98 S.Ct. 2674.
C. Staleness
Ali also argues that the affidavits were based on such stale information that the executing officers “could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Webb, 255 F.3d 890, 905 (D.C. Cir. 2001) (quoting Leon, 468 U.S. at 926, 104 S.Ct. 3405). Specifically, Ali protests that the piracy of the CEC Future concluded more than fifteen months before the first warrant application was submitted on May 25, 2010, and more than two years before the majority of the warrant applications were submitted in April and May 2011.
It is true that in cases that pre-date Leon, the D.C. Circuit concluded that probable cause expired in far shorter periods. See, e.g., Schoeneman v. United States, 317 F.2d 173, 177–78 (D.C.Cir.1963) (no probable cause to believe that classified documents were in defendant‘s house when they were last seen 107 days before the application for the warrant was made). Yet, “[i]n determining probable cause for the issuance of a search warrant, time alone, of course, is not controlling.” Id.; see United States v. Harris, 369 F.3d 1157, 1165 (10th Cir.2004) (“The determination of timeliness . . . does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant.” (internal quotation marks and citation omitted)). Rather, “the probable-cause requirement looks to whether evidence will be found when the search is conducted.” United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (emphasis in the original). Accordingly, the critical question is whether, at the time an affidavit is presented to a magistrate, it establishes probable cause that evidence will be found at the location of the search. United States v. Abboud, 438 F.3d 554, 572 (6th Cir.2006). In answering this question, courts consider, inter alia, “the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.” Harris, 369 F.3d at 1165 (internal quotation marks and citation omitted).
As relevant here, “courts have determined that when the evidence sought is of a type that would be maintained after the criminal activity ceased, then older information can still be considered reliable when used to obtain a search warrant.” United States v. Edelin, 128 F.Supp.2d 23, 46 (D.D.C.2001) (collecting cases). Where a warrant targets documentary materials
In addition, “[c]ourts have been considerably more lenient in assessing the currency of information supporting probable cause in the context of extended conspiracies than in the context of single-incident crimes.” Webb, 255 F.3d at 905. Accordingly, staleness is also less likely to defeat the existence of probable cause where the affidavit alleges ongoing criminal activity. Abboud, 438 F.3d at 573; see United States v. Greene, 250 F.3d 471, 481 (6th Cir.2001); accord United States v. McElroy, 587 F.3d 73, 77-78 (1st Cir. 2009); United States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir.2005); United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998); United States v. Harris, 20 F.3d 445, 450 (11th Cir.1994) (collecting cases). Furthermore, “acts which are not inherently criminal may become criminal and support a finding of probable cause if committed to further an ongoing conspiracy.” Id. at 451 n. 7.
All of the above factors weigh in the government‘s favor. The magistrates were entitled to conclude that the evidence targeted by the warrants (documents, computer files, emails, call records, text messages, photos, and address book entries pertaining to piracy) was of the “type that would be maintained after” the pirates released the CEC Future. Edelin, 128 F.Supp.2d at 46. Furthermore, the affidavits allege that Ali continued to use his email account, cell phone, and computer to communicate about piracy well after the CEC Future incident,29 which in itself may be enough to “defeat [Ali‘s] claim of staleness.” Abboud, 438 F.3d at 573. The fact that Ali conceivably could have deleted his email, wiped his phone, cleared his computer, or destroyed his business records is of no consequence to the Court‘s inquiry, for probable cause requires only a “fair probability that contraband or evidence of a crime will be found.” Gates, 462 U.S. at 238, 103 S.Ct. 2317 (emphasis added). At the very least, the Court concludes that the warrants were not so lacking in fresh information so as to make the executing officers’ reliance on them objectively unreasonable. Webb, 255 F.3d at 905.
Having rejected Ali‘s general challenges to the affidavits’ omissions of certain alleg-
D. May 25, 2010 and October 11, 2011 search warrants for Ali‘s email
1. May 25, 2010 warrant
On May 25, 2010, a magistrate issued a warrant authorizing the police to search Ali‘s email account. (Def. Mot. to Suppress, Ex. 1) Ali alleges that he is entitled to a Franks hearing because the affidavit underlying the warrant contains misrepresentations and omissions.
Certain of Ali‘s allegations can be summarily dismissed. First, Ali protests that the affidavit described him as “very knowledgeable about pirate operations, procedures and ransom negotiations” (id., Ex. 1 at 1386), notwithstanding that Gullestrup had told the affiant that, after Ali boarded the CEC Future, Ali “realized he was in over his head and remained in his own cabin away from the pirates.” (Id., Ex. 1431 at 2010.) But the Court does not agree that these statements are “in considerable tension.” (Id. at 22.) Ali may have known a great deal about piracy generally but still have been overwhelmed by the specific occurrences aboard the CEC Future. This rather nuanced dispute over the proper inference does not rise to the level of a falsity.
Second, Ali challenges the fact that the affidavit describes as a “ruse” his alleged statement to Clipper that “his was life in danger.” (Id., Ex. 1 at 1391.) Ali alleges that the characterization was false because Gullestrup had told the affiant that, “[a]round day 60 of the hijacking, the pirates were thinking about getting another negotiator” and “confined Ali to his cabin.” (Id., Ex. 14 at 2013.) However, Gullestrup‘s source for this information was Ali himself. The fact that Gullestrup relayed Ali‘s statements to the affiant does not undercut the affiant‘s belief that the whole story was pretextual.32
Ali‘s remaining challenges to the sufficiency of the affidavit underlying the
Second, the affiant‘s statement that Ali “expressed concern that [REDACTED] would have his email address,” and the affiant‘s corresponding “belie[f] that this indicates that Mr. Ali still utilizes this email address for communications and is concerned that [REDACTED] may be able to access the account,” are also troublesome. (Id., Ex. 1 at 1392.) In fact, as the affiant knew, [REDACTED] That the affiant knew this, [REDACTED], belies his characterization in the affidavit.
Yet, although these misstatements and omissions may well have misled the magistrate, Ali is only entitled to a Franks hearing if they are material, i.e. if, when the misstatements are “set to one side” and the omitted facts are included, the corrected affidavit does not “support a finding of probable cause.” 438 U.S. at 171-72, 98 S.Ct. 2674; see Spencer, 530 F.3d at 1007. Here, Ali argues that the misstatements and omissions are material
Ali is surely correct that it would not be enough if the corrected affidavit amounted to nothing more than, for example, “crimes were committed aboard the CEC Future, Ali was aboard the CEC Future and may have participated in those crimes, and Ali has an email account.” In concluding that warrants to search suspects’ email accounts adequately establish a nexus, courts insist on a direct connection between the alleged criminal activity and the specific email account at issue,36 and that connection typically arises because the affidavit asserts that the account was used in the commission of the crime.37 To require anything less would be to authorize “‘a general, exploratory rummaging in a person‘s belongings‘” contrary to the Fourth Amendment‘s prohibition against general warrants. Andresen, 427 U.S. at 479, 96 S.Ct. 2737 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). As Ali notes, however, he is “accused of committing piracy on the high seas, not software piracy.” (Def. Suppression Reply at 16 n. 9.) The corrected affidavit would state that Ali did not have email access while he was aboard the CEC Future, so his account would not contain any communications made during the piracy. Furthermore, it would neither state nor imply that Ali had been guarded about revealing his email address to [REDACTED].
Nonetheless, especially given that Ali‘s intent is the central issue in this case, the
2. October 11, 2011 warrant
Ali alleges that the second warrant for his email, issued on October 11, 2011 (Def. Mot. to Suppress, Ex. 7), contains similar misstatements and omissions. The Court concludes that Ali‘s arguments fail for similar reasons.
First, Ali protests that the affiant for this warrant repeated the statement, made in the May 25, 2010 affidavit, “that Ali‘s knowledge about piracy indicates that ‘he was a key participant in the conspiracy.‘” (Id. at 28 (quoting id., Ex. 7 at 1416).) There is nothing misleading here. Ali‘s actions aboard the CEC Future, which the affiant described in some detail (see id., Ex. 7 at 1416), justify the affiant‘s characterization of Ali as a “key participant.” Whether Ali was a conspirator is a separate issue, and one that is not relevant to the probable cause analysis. (See supra Section II(B).)
Second, Ali argues that this affiant, like the affiant of the May 25, 2010 affidavit, sought “to conjure a nexus by misleading the magistrate into believing that Ali used his personal email account during the CEC
3. Scope of the warrants as executed
In addition to challenging the validity of the May 25, 2010 and October 11, 2011 warrants, Ali challenges their execution, claiming that the officers exceeded the scope of the warrants when they searched his email. Specifically, Ali claims that the government seized emails that were outside the date ranges and not pertinent to the subject matters specified in those warrants. (Def. Mot. to Suppress at 27-28, 30-31.)
Here, Ali‘s claims go to the behavior of the police, and they therefore implicate the precise concerns that motivate the exclusionary rule. Davis, 131 S.Ct. at 2427-28. Furthermore, challenges to the scope of searches for digital evidence raise unique Fourth Amendment issues, in part because computers and email accounts “‘often contain significant intermingling of relevant documents with documents that the government has no probable cause to seize.‘” United States v. Cioffi, 668 F.Supp.2d 385, 391 (E.D.N.Y.2009) (quoting United States v. Vilar, No. S305CR621, 2007 WL 1075041, at *35 (S.D.N.Y. April 4, 2007)).39 Thus, the “acute constitutional hazards” of document searches, United States v. Heldt, 668 F.2d 1238, 1260 (D.C.Cir.1981) (per curiam), are amplified in the information age. Cioffi, 668 F.Supp.2d at 391 (citing Andresen, 427 U.S. at 482 n. 11, 96 S.Ct. 2737).40 Yet,
E. April 21, 2011 and May 4, 2011 warrants for materials in Ali‘s possession when he was arrested at Dulles International Airport
1. April 21, 2011 search warrant for Ali‘s suitcase and computer bag
While Ali states, without elaboration, that the affidavit underlying the April 21, 2011 warrant for his suitcase and computer bag “is materially misleading,” the only argument he puts forward is that the affidavit so lacked in indicia of probable cause as to make official reliance on it unreasonable because “[t]here is no reason to believe that probable cause existed that Ali would be carrying . . . incriminating documents relating to piracy on his person” when he landed at Dulles purportedly en route to attend a conference in North Carolina. (Def. Mot to Suppress at 31 (emphasis in the original).) Without more, this claim cannot justify exclusion of the evidence obtained. When the customs agents opened Ali‘s suitcase, the affiant “observed . . . that it contained documents,” and in the affidavit she stated her belief that Ali‘s luggage might “contain records or documents related to Ali‘s participation in the piracy of the CEC Future and may identify individuals or associates who were also involved in the piracy.” (Id., Ex. 3 at 1490-91.) In combination with the other facts relayed, including that Ali communicated with Clipper during the piracy via fax (id., Ex. 3 at 1490), these statements were enough to establish probable cause, or at the very least to make it objectively reasonable for the executing officers to rely on the magistrate‘s determination thereof. Leon, 468 U.S. at 922, 104 S.Ct. 3405.
The affidavits underlying the April 21, 2011 warrant for Ali‘s laptop and the May 4, 2011 warrant for Ali‘s external hard drive are nearly identical. After briefly describing the piracy of the CEC Future and Ali‘s alleged role, the affidavit underlying the April 21, 2011 warrant indicates that:
- During the negotiations, Ali communicated with Clipper Group A/S via email and fax. Witnesses observed Ali in possession of a laptop computer when he boarded the ship. Witnesses observed him using the laptop computer when he boarded the ship. Investigation revealed that Ali used [the] email address, ali_ali692@hotmail.com. Ali has communicated with numerous people via email regarding piracy after the CEC Future was released. In some of those communications, Ali marketed himself as an expert in piracy. It is reasonable to believe that communications regarding piracy would be contained on the laptop computer.
- Upon arrest, Ali was found to be in possession of a laptop computer . . . .
- It is believed that this device and any associated media may contain records or documents related to Ali‘s participation in the piracy of the CEC Future and may identify individuals or associates who were also involved in the piracy. If the device was used to connect to the internet, it may contain records of email communications and their content.
(Def. Mot. to Suppress, Ex. 5 at 1442-43 (emphasis added).) The affidavit underlying the May 4, 2011 warrant omitted the two italicized sentences, each beginning “Witnesses observed . . .,” and swapped the italicized references to Ali‘s “laptop computer” with references to the “external hard drive” that Ali also had with him when he was arrested. (Id., Ex. 6 at 1458-59.) Otherwise, the affidavits established how the government had come to possess the devices, described their chain of custody, defined mostly irrelevant “technical terms” (including “digital camera,” “GPS,” “PDA,” and “pager“), and proposed search protocols. (Id., Ex. 5 at 1443-8; id., Ex. 6 at 1459-64.)
Ali argues that both affidavits suffer from misstatements and omissions that were made intentionally or with reckless disregard for the truth, and that, when corrected, the affidavits fail to establish probable cause. Critically, whereas the May 25, 2010 warrant for Ali‘s email only implied that Ali had communicated with Clipper during the crisis via email, these warrants state that, “[d]uring the negotiations, Ali communicated with Clipper Group A/S via email and fax.” (Id., Ex. 5 at 1442 (emphasis added); id., Ex. 6 at 1458 (emphasis added).) To the contrary, at least some government agents knew that Ali did not have email access while he was onboard the CEC Future. (Id., Ex. 14 at 2010 (“There was no email contact with the [p]irates.“).) Indeed, the government has conceded that these statements are “incorrect (and should have read ‘via phone and fax‘).” (Gov‘t Suppression Opp‘n at 15.) Still, these warrants sought to search Ali‘s laptop and external hard drive, not his email, so the nexus calculus is different. Thus, the government argues that the misstatements are immaterial.
Also troubling is Ali‘s allegation that the government knew that the laptop computer Ali used aboard the CEC Future was damaged sometime after the piracy, and replaced by a different computer, which was the one that Ali carried when he land-
Again, however, the Court concludes that these misstatements and omissions were not material to the establishment of probable cause. Even the corrected affidavits would establish a sufficient nexus. The affiants placed Ali onboard the CEC Future using a laptop, and landing at Dulles with a laptop and external hard drive. Even if the affidavits omitted any mention of email and stated that two different laptops were at issue, the possibility that Ali might have transferred his files from one to the other, or from his original laptop to the external drive, would establish a “fair probability” that Ali‘s laptop and external hard drive would contain evidence of a crime. Gates, 462 U.S. at 238, 103 S.Ct. 2317. Therefore, the alleged omissions and misstatements do not provide a basis for a Franks hearing.41
CONCLUSION
For the reasons stated, the Court will deny the government‘s motions in limine pertaining to evidence of Ali‘s mental state, grant Ali‘s motion for the admission of evidence under
NATIONAL RESTAURANT ASSOCIATION, et al., Plaintiffs,
v.
Hilda L. SOLIS, Secretary, U.S. Department of Labor, et al., Defendants.
Civil Action No. 11-1116 (ABJ).
United States District Court, District of Columbia.
May 29, 2012.
Notes
The Seventh Circuit affirmed Cullen‘s conviction. Id. at 392. Writing for the court, then-Judge Stevens responded to Cullen‘s contention “that his evidence of ‘compulsion’ [was] relevant to the issue of intent” by first “recogniz[ing] that the term ‘intent’ may be used in at least three different senses: First, that the prohibited act was performed deliberately; second, that defendant knew it was wrong; and third, that it was designed to further some ultimate goal.” Id. at 390. Judge Stevens concluded that the crimes with which Cullen was charged only required a showing of intent as contemplated by the first and second meanings of the term, such that any religious compulsion he may have felt was irrelevant. Id. at 392. As to the third type of intent, however, Judge Stevens recognized that, “[i]n some situations the defendant‘s ultimate objective may be an element of the particular offense charged.” Id. at 391. As an example, Judge Stevens stated that “to prove a criminal attempt an analysis of the defendant‘s purpose beyond the overt act ac-
tually completed is necessary.” Id. at 391-92 (footnote omitted). Conspiracy and aiding and abetting, as other inchoate offenses, require the same. As noted above, under “‘the law of inchoate offenses,’ with regard to crimes ‘such as attempt[,] ... conspiracy,’ and aiding and abetting, ‘a heightened mental state separates criminality itself from otherwise innocuous behavior.‘” Childress, 58 F.3d at 707 (quoting Bailey, 444 U.S. at 405); see Seals, 130 F.3d at 463 (aiding and abetting is an inchoate offense).“The D.C. Circuit has not yet weighed in on whether a court can make an inference of recklessness if an affiant omits material that is ‘clearly critical’ to the finding of probable cause.” United States v. Lindsey, 596 F.Supp.2d 55, 60 n. 4 (D.D.C.2009). However, in the context of false statements, the Circuit in Davis held that an affiant acts with reckless disregard for the truth where “there exist[] ‘obvious reasons to doubt [the statement‘s] veracity.‘” 617 F.2d at 694 (quoting St. Amant, 390 U.S. at 732). By extension, it seems that reckless disregard can be inferred in the context of omissions where “any reasonable person would know that a judge would want to know” the omitted facts in making a determination of probable cause. Wilson, 212 F.3d at 783; see, e.g., United States v. Robinson, 546 F.3d 884, 889 (7th Cir.2008) (To be entitled to a Franks hearing, “a defendant has the burden to ‘offer direct evidence of the affiant‘s state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard.‘” (emphasis added) (quoting McNeese, 901 F.2d at 594)).
Later, the affidavit stated that, “[a]s noted above, the investigation has revealed that Mr. Ali utilized the ali-ali692@hotmail.com account to communicate with Clipper Shipping.” (Id., Ex. 1 at 1392.) The implication is that Ali was able to access his email via the ship‘s satellite phone and used his email to conduct negotiations.During [the piracy of the CEC Future], Mr. Ali and Clipper Shipping were in constant contact to discuss ransom amounts, the welfare of the crew and terms of release. Mr. Ali requested that Clipper Shipping activate communications systems, specifically email and fax, in order to expedite the ransom negotiations. Mr. Ali utilized the ship‘s satellite telephone, a Somali based mobile telephone, and the ship‘s fax machine during these negotiations. (Def. Mot. to Suppress, Ex. 1 at 1387 (emphasis added).)
United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011).[C]omputers hold [a great deal of] personal and sensitive information touching on many private aspects of life. We recognize individuals have a reasonable expectation of privacy in the content of emails stored, sent, or received through a commercial internet service provider. United States v. Warshak, 631 F.3d 266, 288 (6th Cir.2010). And we know there is a far greater potential “for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001).
668 F.2d at 1260 (internal quotation marks, citations, and footnotes omitted). The court went on to quote at length from the Supreme Court‘s decision in Andresen, “which involved a search and seizure of a criminal defendant‘s office files“:In the context of document searches, the need to prevent general, exploratory rummaging in a person‘s belongings is particularly acute. Unlike searches for other tangibles, document searches—like eavesdropping and bugging searches—tend to involve broad disclosures of the intimacies of private lives, thoughts and transactions.
“[T]here are grave dangers inherent in executing a warrant authorizing a search and seizure of a person‘s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”
However, absent a showing that an executing officer exhibited “a flagrant disregard for the limitations in a warrant [that] might transform an otherwise valid search into a general one, thereby requiring the entire fruits of the search to be suppressed,” where “officers seize some items outside the scope of a valid warrant, this by itself will not affect the admissibility of other contemporaneously seized items which do fall within the warrant.” Id. at 1259 (collecting cases). In Ali‘s motion to suppress, he does not allege that the officers executing the May 25, 2010 and October 11, 2011 warrants exhibited such a flagrant disregard. Indeed, in protesting the scope of the email searches he only moved for the suppression of “all seized information not specifically identified by the warrant[s].” (Def. Mot. to Suppress at 27-28, 31 (emphasis added).) For its part, the government has represented that it will not “use any emails outside the scope of the warrant[s] in its case-in-chief at trial.” (Gov‘t Suppression Opp‘n at 16-17.) Given this representation, and in the absence of any argument or evidence by Ali to support a claim of flagrant disregard, Heldt compels this Court to deny Ali‘s unsubstantiated request (see Def. Suppression Reply at 24) for a hearing on the issue.
Heldt, 668 F.2d at 1260 (quoting Andresen, 427 U.S. at 482 n. 11, 96 S.Ct. 2737).