[Orin Kerr] District court overturns magistrate decision rejecting ‘seize first, search second’ procedure for email warrants

Magistrate Judge David J. Waxse has been an active participant in the “magistrates’ revolt,” an effort by a handful of federal magistrate judges to advance more privacy-protective approaches to the Fourth Amendment and the statutory privacy laws. In March, Waxse handed down a decision rejecting a warrant to search several Hotmail email accounts on the ground that the two-step procedure used to execute email warrants violated the Fourth Amendment. Under the procedure, the warrant orders the service provider to hand over the entire account; the government then searches the entire account for the information sought in the warrant. Echoing his decision from 2015 about cellphone searches, Waxse held in March that this two-step procedure violates the Fourth Amendment particularity requirement unless the government includes a sufficient set of ex ante search protocols guiding the warrant.

The government then sought further review from the Article III district court.

District Judge Carlos Murguia has now handed down a new decision reviewing Magistrate Judge Waxse’s March decision. Judge Murguia does not engage a first-principles rethinking of the law as did Magistrate Judge Waxse. Instead, Judge Murguia mostly follows the decisions of other courts.

Most importantly, Judge Murguia concludes that the two-step email warrant procedure satisfies the Fourth Amendment’s particularity requirement without search protocols:

[T]his court concludes it was clearly erroneous or contrary to law for Judge Waxse to find it was not sufficiently particular. The warrant application identified with specificity the target email accounts to be searched and the evidence to be seized in connection with violations of 18 U.S.C. §§ 371 (conspiracy), 1029 (access device fraud), 1030 (computer intrusion), 1343 (wire fraud), and 2319 (copyright infringement), all occurring since September 7, 2008. The government stated with specificity the exact information it sought, thus leaving officers with little discretion to go outside the scope of the warrant. The application also included an affidavit detailing the criminal scheme and explaining the relevance of the evidence to the investigation. Rule 41(e) (2) authorizes the “seize first, search second” two-step process, thus allowing the government to obtain all of the data to later search for relevant evidence. And while Rule 41(e) (2) leaves open the question of particularity when the government seeks ESI, the majority of case law relating to the search of an email account has upheld the Government’s ability to obtain the entirety of the account to then search for relevant evidence. Based on the current state of the law, this court finds Judge Waxse’s decision regarding particularity was clearly erroneous or contrary to law.

On the other hand, Judge Murguia agrees that probable cause was lacking in this application, and he refuses to consider the government’s updated application that had a broader basis of cause. So the government wins on the big issue, but technically it loses on this particular application (which it can then just renew with more evidence).

Also interesting, albeit in dicta, Murguia states that ex ante search restrictions are not per se prohibited:

Various courts have held that ex ante instructions are permissible, but not required under the Fourth Amendment. See In re Search Warrant, 71 A. 3d 1158 (Vt. 2012) (rejecting “any blanket prohibition on ex ante search warrant instructions”); see also In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx@gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d 386, 397 (S.D.N.Y. 2014), as amended (Aug. 7, 2014) [hereinafter, SDNY Email] (noting there was no requirement that a “magistrate judge approving a warrant application must or should impose ex ante restrictions pertaining to the later execution of that warrant” (emphasis added); United States v. Christie, 717 F. 3d 1156, 1166—67 (10th Cir. 2013) (discussing that the Fourth Amendment particularity requirement may or may not require limitations ex ante; however, “even if courts do not specify particular search protocol up front in the warrant application process, the