“The major, overriding problem with the description of the object of the search—“any or all files”—is that the police did not have probable cause to believe that everything on the phone was evidence of the crime of public indecency.” United States v. Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015)
The Supreme Court put the scope of such a wholesale seizure in perspective by explaining that it “would typically expose the government to far more than the most exhaustive search of a house.” Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2491, 189 L.Ed.2d 430 (2014) (emphasis in original).
United States v. Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015)
"I can't see a court allow a general search warrant, after all they are unconstitutional, and it's been well established by the courts that they are unconstitutional. (Marron v. United States, 275 U.S. 192 (1927) all the way to (Groh v. Ramirez, 540 U.S. 551 (2004)" (Daugherty 2024)
“At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach.” United States v. Griffith, 867 F.3d 1265, 1270-71 (D.C. Cir. 2017)
“Although we pay "great deference" to the judge's initial determination of probable cause, a warrant application cannot rely merely on "conclusory statement[s]." Id. at 236, 239, 103 S.Ct. 2317 (citing Nathanson v. United States , 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933) ).” United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017)
The Supreme Court has long distinguished between arrest warrants and search warrants. See Steagald v. United States , 451 U.S. 204, 212-13, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). An arrest warrant rests on probable cause to believe that the suspect committed an offense; it thus primarily serves to protect an individual's liberty interest against an unreasonable seizure of his person. Id. at 213, 101 S.Ct. 1642. A search warrant, by contrast, is grounded in "probable cause to believe that the legitimate object of a search is located in a particular place." Id. Rather than protect an individual's person, a search warrant "safeguards an individual's interest in the privacy of his home and possessions against the unjustified intrusion of the police."
United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017)
Regardless of whether an individual is validly suspected of committing a crime, an application for a search warrant concerning his property or possessions must demonstrate cause to believe that "evidence is likely to be found at the place to be searched." Groh v. Ramirez , 540 U.S. 551, 568, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Moreover, "[t]here must, of course, be a nexus ... between the item to be seized and criminal behavior." Warden, Md. Penitentiary v. Hayden , 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017)
The Fourth Amendment requires that warrants "particularly describe" the "things to be seized." U.S. Const. amend. IV. That condition "ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Garrison , 480 U.S. at 84, 107 S.Ct. 1013. Consequently, a warrant with an "indiscriminate sweep" is "constitutionally intolerable." Stanford v. Texas , 379 U.S. 476, 486, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). We will hold a warrant invalid when "overly broad." United States v. Maxwell , 920 F.2d 1028, 1033-34 (D.C. Cir. 1990).
United States v. Griffith, 867 F.3d 1265, 1275 (D.C. Cir. 2017)
The warrant's overbreadth is particularly notable because police sought to seize otherwise lawful objects: electronic devices. Courts have allowed more latitude in connection with searches for contraband items like "weapons [or] narcotics." Stanford , 379 U.S. at 486, 85 S.Ct. 506 (internal quotation marks omitted). But the understanding is different when police seize "innocuous" objects. See Andresen v. Maryland , 427 U.S. 463, 482 n.11, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). Those circumstances call for special "care to assure [the search is] conducted in a manner that minimizes unwarranted intrusions upon privacy." Id. ; see also 2 LaFave, Search & Seizure § 4.6(d).
United States v. Griffith, 867 F.3d 1265, 1276 (D.C. Cir. 2017)
Anything on the internet could be considered social media (Packingham v North Carolina - US Supreme Court 2017)
The Court held that social media—defined broadly to include Facebook, Amazon.com, The Washington Post, and WebMD—is a "protected space" under the First Amendment for lawful speech (Packingham v North Carolina - US Supreme Court 2017)
42 U.S. Code § 1983 - Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
(R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub. L. 104–317, title III, § 309©, Oct. 19, 1996, 110 Stat. 3853.)
"the Court held that social media—defined broadly to include Facebook, Amazon.com, The Washington Post, and WebMD—is a "protected space" under the First Amendment for lawful speech.
Justice Anthony Kennedy explained the decision: "A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more."
"... sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge."
"It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech'."
The Fourth Amendment prohibits general search warrants and requires that a warrant describe, with particularity, the place to be searched and the persons or things to be seized. U.S. Const. amend. IV. The purpose of the particularity requirement is to “protect persons against the government's indiscriminate rummaging through their property” and to “[prevent] the searching for and seizure of items that there is no probable cause to believe are either contraband or evidence of a crime” United States v. Jones, 54 F.3d 1285, 1289–90 (7th Cir.1995) (citing Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); United States v. Sims, 553 F.3d 580, 582 (7th Cir.2009) (citing Maryland v. Garrison, 480 U.S. 79, 84–85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987)). “By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Garrison, 480 U.S. at 84, 107 S.Ct. 1013; United States v. Vitek Supply Corp., 144 F.3d 476, 481 (7th Cir.1998) (“This requirement ... ensures that the scope of a search will be confined to evidence relating to a specific crime that is supported by probable cause.”)
To satisfy the particularity requirement, a warrant “must describe the objects of the search with reasonable specificity, but need not be elaborately detailed.” Vitek Supply Corp., 144 F.3d at 481. “In practice, courts have ... demanded that the executing officers be able to identify the things to be seized with reasonable certainty and that the warrant description must be as particular as circumstances permit.” Jones, 54 F.3d at 1290 (citing United States v. Brown, 832 F.2d 991, 996 (7th Cir.1987)). Accord United States v. Yusuf, 461 F.3d 374, 395 (3d Cir.2006) (“The breadth of items to be searched depends upon the particular factual context of each case and also the information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate.”) Furthermore, when the search involves digital media, the Seventh Circuit has instructed police officers “to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.” United States v. Mann, 592 F.3d 779, 786 (7th Cir.2010).
United States v. Winn, 79 F. Supp. 3d 904, 918-19 (S.D. Ill. 2015)
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![[Image: 5.jpg]](http://160.32.227.211/5.jpg)
The warrant didn't state what they were supposed to seize within the devices, instead they seized everything in the device, making it a general warrant.
“The major, overriding problem with the description of the object of the search—“any or all files”—is that the police did not have probable cause to believe that everything on the phone was evidence of the crime of public indecency.”
United States v. Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015)
“ ‘[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’ ” (Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068, quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n 5, 104 S.Ct. 3424, 82 L.Ed.2d 737).
... and if you all don't remember Dirty Harrry AKA FCCBodyguard AKA Squashatoad is the one that started ALL this shit.
ALL POSTED in February of 2018
![[Image: Febuary%207%202018.PNG]](http://160.32.227.211/sweb/Pictures/Febuary%207%202018.PNG)
![[Image: Febuary%2022%202018.PNG]](http://160.32.227.211/sweb/Pictures/Febuary%2022%202018.PNG)
![[Image: Febuary%2023%202018.PNG]](http://160.32.227.211/sweb/Pictures/Febuary%2023%202018.PNG)
![[Image: Febuary%2027%202018.PNG]](http://160.32.227.211/sweb/Pictures/Febuary%2027%202018.PNG)
The threat against the school on the Hate and Flame (which he visited) was posted shortly after his last post on twitter.
Dirty Harry AKA FCCBodyguard was in communication with the FBI in August of 2018 claiming I lied to the police and FBI, he has also been the one in communication with both the state and public defender's office and has been on here harassing me. This person has motive; he wants me in jail. BUT THE STATE AND THE PUBLIC DEFENDERS' OFFICE IS TOO STUPID TO SEE IT!!
The Device Warrant Was Patently Unconstitutional
The Device Warrant was invalid because it lacked probable cause and was an unconstitutional general warrant. Moreover, in obtaining that warrant, the government intentionally omitted material facts that demonstrated that they lacked probable cause.
The Device Warrant Lacked Probable Cause
The Device Warrant lacked probable cause because it was based on the statement of an anonymous informant whose credibility was completely uncorroborated by subsequent investigation. Instead, the warrant affidavit rests on the fact that a threatening online post contained publicly available information-Daugherty's name, ham radio signal, and a photograph.
The Device Warrant Was an Unlawful General Warrant
The Device Warrant was an unconstitutional general warrant because it was completely lacking in particularity and as a result an overbroad' general warrant of the type "abhorred by the colonists" that lead to the creation of the Fourth Amendment and the particularity clause. Coolidge v. New Hampshire, 467, 91 S.Ct. 2022, 2038 (1971); see also Carpenter v. United States, 138 S.Ct. 2206, 2239-2240 (2018). Specifically, the warrant here failed to identify the data to be seized from the electronic devices or even the crime for which the police were required to restrict its search.
The search here was unlimited in that it allowed a search of any computer or computer storage device for the following: any and all evidence of dominion and control over the computer, specifically, but not limited to, a computer possessing MAC address "EC:4F:82:29:84:03" or IP address "72.9.123.215"; peer to peer file trading software; any and all information pertaining to dates and times of access to the computer; any and all information pertaining to internet searches pertaining to posts regarding threats of violence directed towards schools or public officials; records and other items which evidence ownership or use of computer equipment found in the above residence; including but not limited to sales receipts, bills for internet access and handwritten notes, records evidencing occupancy or ownership of the premises described above including but not limited to utility and telephone bills, mail envelopes or address correspondence. This does not limit the search to evidence of the threatening post. The language specifically "includes but is not limited to" the subsequent clauses which provide an illustrative but non-exclusive list of what the government may search for and seize. The warrant did not limit the searches of any of the devices to any particular category(s) of information for example: web browser history, cookies, photographs, emails, etc.
Here the Device Warrant uses the same "any and all" language as Winn, the additional broad phrase "including but not limited to," followed by an illustrative list of various types of data. This illustrative list includes types of data for which there is not probable cause. It imposes no temporal limitations and fails to even impose the minimal restriction from Winn limiting the search to evidence of a specific criminal statute. The Device Warrant, at one point, makes an oblique reference to something resembling the facts in the case when it states "any and all information pertaining to internet searches pertaining to posts regarding threats of violence directed towards schools or public officials." However, that clause is in and of itself both overbroad and insufficiently particular. The affidavit did not contain any information establishing threats to public officials or towards schools in general. Had they actually connected Daugherty to that post (which they did not) the only possible thing they could investigate him for was the March 16, 2018, threat "FUCK YOU YOU STALKING MOTHER FUCKERS. I'LL SHOW YOU WHO IS AUSTIC. I'LL GO TO FUCKING MEMORIAL ELEMENTARY SCHOOL AND MAKE SANDY HOOK LOOK LIKE A SUNDAY SCHOOL PICNIC" posted on hateandflame.com. This is a basic tenant of probable cause and particularity a search for evidence of one crime does not allow a search for evidence of other crimes. Furthermore, there is no reason to believe they would find information relevant to their investigation in the form of an "internet search" as there were no facts that established any reason to believe an "internet search" was done for public officials or schools. Therefore, this clause (if it could be considered a clause at all) was both overly broad and lacking in particularity.
The Government Intentionally Omitted Material Facts from the Device Warrant bed Affidavit that If Known to The Judge Would Have Demonstrated an Affirmative Lack of Probable Cause
Officer Christian Nelson intentionally omitted material facts demonstrating that police affirmatively lacked probable cause to execute the Device Warrant. Specifically, he intentionally withheld information regarding the nature of the website itself, the likelihood that individuals there regularly impersonated one another and attempted to harm one another's reputations, and that there was a very real possibility that this had happened in Daugherty's case. Under Franks, evidence seized under a warrant must be suppressed when the defendant shows that "(1) the affidavit in support of the warrant contains false statements or misleading omissions, (2) the false statements or omissions were made deliberately or with reckless disregard for the truth, and (3) probable cause would not have existed without the false statements and/or omissions." Here, officer Nelson made numerous intentional omissions which if they had been known to the judge would have informed them that the threatening post likely came from a third party (potentially the tipster themselves) rather than Todd Daugherty.
First, officer Nelson, intentionally omitted that the initial tip itself was suspect because the tipster used the Tor network as a means of obscuring their location and identity. Although the person claimed to be from the United States, their IP address resolved in France to a node identified with the Tor network. This information would have demonstrated to the issuing judge that the tipster had an above average knowledge of computer networks and was utilizing them in this case to mask their identity from the FBI in making accusations against Daugherty. Furthermore, this information would also have demonstrated they were either lying about their actual location or taking steps to conceal it, further undermining their credibility.
Second, Officer Nelson intentionally omitted an explanation of the contents of the website the post was made, www.hateandflame.com. He did not explain that the site was a virtual cesspool of individuals impersonating, antagonizing, threatening, and doxing one another. Other than the post attributed to Daugherty, none of the individuals used their real names to post. Instead, they used obviously fake names like "Ernist Hemingay", "Buddy Che Hinton", "Harry Tard Snortz" "Loyd Davies, Timelord" "THE PINKLE WHEEZLE", "STAINLESS STEEL FUCKBOT" or just "." Nor did any of them use real photographs of themselves as their profile photos with the exception being the post allegedly made by Todd Daugherty. Nor did he explain that Thomason recognized the photographs on the post of Daugherty holding a gun from a previous incident or that Daugherty explained he had previously posted them on a blog making them available to anyone on the internet to use. Further, he did not reveal that during the days leading to the threatening post, many of these individuals were accusing one another of posting under multiple account names. This would have greatly undermined the value of paragraphs two and five which attach the account to Daugherty through an image of him and his ham radio call sign. It also would have provided credence to Daugherty's statement in paragraph four that he was being set up by a member of the online community.
Third, he did not reveal that he had no technical means of identifying Todd Daugherty as the person who posted the threat. When he submitted the affidavit, while he had obtained Todd Daugherty's IP and MAC address from Daugherty's internet service provider, he had not obtained or executed a search warrant for the web logs from www.heatandflame.com and he therefore could not confirm that the posting was linked to an account or computer owned by Daugherty. Nor did he explain to the judge that he had no idea what credentials an individual must supply in order to access the website, what the policies on impersonating others are, or how they are enforced. Had he fully explained that he had methods of verifying the informant's claims but had yet to employ any of them, the judge likely would not have signed off on the warrant until those investigations were completed.
Finally, officer Nelson hid the fact that prior to his application, multiple individuals had provided information to law enforcement that supported Daugherty's claims that he was being "set up" by someone online. Specifically, he omitted that on March 18, 2018, Todd Daugherty's brother, Jeremy Daugherty, contacted the Taylorville police department and provided links to the hateandflame website demonstrating that individuals were making posts purporting to be Todd Daugherty while he was in police custody. He also omitted mention that a Canadian man named Karl Madera contacted the State's Attorney Mike Havera to tell him that Todd Daugherty was being set up by someone named Bryan Crow. Again, these facts both undermined the value of paragraphs two and five and demonstrated the potential truth of Daugherty's claims in paragraph 4. Had the judge been aware of all the circumstances surrounding the investigation and the possibility that Daugherty was being set up by a member of a toxic online community known for impersonating people, they never would have signed a warrant to seize and search every device in his home.
Agent O'Sullivan Conducted a Warrantless Search of the Devices
FBI agent William O'Sullivan executed a warrantless search of the devices after the Device Warrant was quashed and the charges against Daugherty were dismissed for a lack of probable cause. Therefore, all fruits of that search must be suppressed. Warrantless searches are per se unreasonable, absent limited exceptions. Furthermore, probable cause must exist not only at the time law enforcement obtains a warrant, but also at the time the warrant is executed. Where a search warrant is issued on probable cause, changed circumstances or new information can negate a prior determination of probable cause. When new circumstances call into question an original finding of probable cause, the officer must bring the new information to the issuing magistrate's attention. Thus, when a definite and material change has occurred in the facts underlying the magistrate's determination of probable cause, it is the magistrate, not the executing officers, who must determine whether probable cause still exists. Therefore, the magistrate must be made aware of any material new or correcting information. Here, although the government initially obtained a warrant for the device in question on March 21, 2018, by, March 29, 2018, the government knew they no longer had probable cause to prosecute Daugherty. That is when police learned that neither Daugherty's IP address, nor his MAC address had been used to post on hateandflame.com during the time of the threatening post. Instead, they learned that the IP address responsible for the threatening post was associated with the TOR network and was therefore anonymous. Further, police learned that 90% of people posting on the website were using Tor or proxy sites; no registration was required; no email addresses were checked; as a result of all this anybody could post as anybody else and impersonation is part of the status quo for the board. All of this simply confirmed what police had been told by multiple witnesses and what was readily apparent from the fact that someone continued to post as Daugherty while he was incarcerated and lacked access to the internet-that Todd Daugherty was being set up by someone posting on hateandflame.com using his name and likeness. Despite confirming that Daugherty could not be connected to the threat and that they lacked probable cause, police gave all of the devices to the FBI on April 11, 2018, and requested that
they conduct a search.
Furthermore, on April 16, 2018, the government filed motion to dismiss the case based on the following facts: (1) the website used to disseminate the threat did not require any login credentials, (2) while Daugherty was in custody more messages appeared under his name, (3) posts on the website were made by people impersonating "judges, the president, and other such individuals" (4) Daugherty's internet activity showed nothing to implicate him in the case. At 11:32 a.m. on April 16, 2018, the court granted the motion which specifically stated that any warrants or summonses previously issued were
quashed. Despite the lack of a warrant or probable cause, Agent O'Sullivan withdrew the devices from storage at 8:20 p.m. on that same day, April 16, 2018 and created an inventory. It was not until three days after the warrant had been quashed that he began the process of extracting the contents pursuant to the invalid (and at that point non-existent) Device Warrant. Then, on April 23, 2018, a week after the warrant had been quashed, O'Sullivan began to search the device. During that warrantless search O'Sullivan found what he noted what appeared to be a computer-generated image of a minor child with an adult male penis in his mouth. Thus, the evidence discovered here was discovered after the Device Warrant was quashed and
was therefore a warrantless search. Furthermore, the probable cause on which the Device Warrant was had dissipated prior to the Taylorville police department providing the devices to the FBI to conduct the searches.
The Federal Warrant Contains Material Misstatements and Omissions Regarding the Device Warrant and the Case Against Daugherty
The Federal Warrant application drafted by Special Agent Anthony Wright misrepresents the nature of the FBI's possession of the devices and the validity of the Device Warrant. If these misrepresentations and omissions were excised or corrected in the warrant application for the Federal Warrant, Magistrate Tom Schanzle-Haskins would not have signed Federal Warrant. First, paragraph six of the Federal Warrant states that the Taylorville Police department seized the devices "based on a state search warrant related to threats of a mass shooting against Memorial Elementary School in Taylorville, Illinois made by Daugherty." It does not explain that the case against Daugherty had since been dismissed for a lack of probable cause and that the warrants on which they were seized was subsequently quashed for the same reasons. Second, paragraphs seven and eight of the Federal Warrant imply that the search was conducted on April 6, 2018, before the warrant was quashed. However, the search was not conducted until after probable cause had dissipated and the warrant had been formally quashed by a judge at the request of the prosecution for a lack of probable cause. The Federal Warrant essentially laundered all of the problems with the investigation into Daugherty, the Device Warrant, and the illegal execution, by merely claiming that they had a valid warrant and stumbled across contraband in plain view. With this whitewashed version of the events surrounding the investigation into the hateandflame incident and Daugherty's devices, there can be no wonder why the magistrate signed the Federal Warrant. They were under the impression that the FBI, acting on a valid state warrant, stumbled across contraband in plain view and acted according to the law to obtain a new warrant. Had the magistrate been aware of all the circumstances surrounding the investigation into Daugherty and the search and seizure of his devices he never would have signed the Federal Warrant.
Daugherty is Entitled to a Hearing on the Execution of the Search
Should the court find that agent O'Sullivan was allowed to execute a search pursuant to the Federal Warrant, Daugherty is entitled to a hearing on the methodology used to conduct the search of the devices to examine whether it adhered to the constitutional strictures. In the context of electronic device searches, the Fourth Amendment requires the courts to "assess the propriety of the government's search methods (the how) ex post in light of the specific circumstances of each case. So, even if courts do not specify particular search protocols up front in the warrant application process, they retain the flexibility to assess the reasonableness of the search protocols the government actually employed in its search after the fact, when the case comes to court, and in light of the totality of the circumstances." To the extent the Court finds Device Warrant put some restrictions on the subsequent search, it is clear that it did not authorize a search for child pornography or child sexual abuse material. Therefore, the contraband in question was beyond the scope of the warrant and the government can only proceed by claiming that it was in "plain view." Thus, unless the State concede suppression is mandated, a hearing is required to "assess the government's search techniques" and test this claim.
The Federal Warrant Was Not Sought Within a Reasonable Time Period of the FBI's Warrantless Seizure
Setting aside the problems with the initial Device Warrant, the evidence must be suppressed because the government waited almost two years to seek a Federal Warrant to re-search the devices. This unreasonable delay in seeking a warrant was an additional violation of Daugherty's constitutional rights.
"[T]he Fourth Amendment imposes a time-sensitive duty to diligently apply for a search warrant if an item has been seized for that very purpose, and all the more so if the item has been warrantlessly seized." In making the determination that 31 days was unreasonable in ordinary cases the court examined four factors: (1) the length of the delay, (2) the importance of the seized property to the defendant, (3) whether the defendant had a reduced property interest in the seized items, and (4) the strength of the state's justification for the delay.
a) The length of the delay Weighs in Favor of Suppression
In Smith, the Second Circuit found a delay of 31 days or more in seeking a warrant is unreasonable. The court in Smith gave independent weight to the length of delay and concluded that a month-long well exceeds what is ordinarily reasonable. In the instant case, the affidavit seeking to search the electronic devices was filed 686 days or one year 10 months and 15 days after the dismissal of the warrant in this case. "If the police have seized a person's property for the purpose of applying for a warrant to search its contents, it is reasonable to expect that they will not ordinarily delay a month or more before seeking a search warrant." (Smith) The officers in the instant case waited over 22 times longer than the 31 days in Smith to seek a search warrant for the property seized. Therefore, the delay weighs strongly in favor of suppression.
b) The Importance of the Seized Property Weighs in Favor of Suppression
In Smith, the Court noted "our starting point is to consider the nature of the property seized: a personal tablet computer that is typically used for communication and for the storage of immense amounts of personal data. The sheer volume of data that may be stored on an electronic device like a Nextbook (or similar tablet computer products like an Apple iPad) raises a significant likelihood of that much of the data on the device that has been seized will be deeply personal and have nothing to do with the investigation of criminal activity. For this reason, we have recognized the special concerns that apply when law enforcement seize and search people's personal electronic data and communication devices." "While physical searches for paper records or other evidence may require agents to rummage at least cursorily through much private material, the reasonableness of seizure and subsequent retention by the government of such vast quantities of irrelevant private material was rarely if ever presented in cases prior to the age of digital storage." (United States v. Ganias) "Indeed, this fundamental distinction between one's ordinary personal effects and one's personal electronic devices has persuaded the Supreme Court to accord broader constitutional protection when police seize a person's 'smart' cell phone." Id. The Supreme Court has observed that "modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." (Riley v California) In the case at bar, law enforcement retained all fifteen items seized from Daugherty's home including: a black and blue Seagate hard drive, serial number NA7DWTK4; one Seagate 1TB hard drive, serial number 5vPG12DV, a Cyperton computer tower, serial number GA-78LMT-USB3; a Compaq computer, serial number CNH4520P00; a Gateway 7320 laptop, serial number N3451-710- 03782; a Gateway computer, serial number PTE590XD01960595B2700; three DVD-Rs, one CDR, one CTI router, and four assorted USB drives. Warrant Return, 18-MR-40. This goes far beyond the single tablet seized in Smith and weighs strongly in favor of suppression.
c) Daugherty's Property Interests in His Devices Weighs in Favor of Neither Party
According to Smith, a defendant may have a reduced property interest because of a consent to a seizure or search or by voluntarily relinquishing property to a third party. In the alternative, one's property interest may be diminished because of the existence of probable cause. However, even in the event that probable cause rather reasonable suspicion existed, "...the police's interest was delimited by the obligation to seek a search warrant without unreasonable delay." "That is because '[t]he longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be, for the obvious reason that a longer seizure is a greater infringement than a shorter one." The court opined in Smith that the existence of probable cause was relevant to Smith's possessory interest, but was far from dispositive to deciding the reasonableness of the delay in seeking the search warrant. Here, Daugherty did not consent to a seizure or search the 15 items retained by the FBI. Instead, they were obtained through the use of a warrant that lacked probable cause, was obtained through the use of material misstatement and omissions, and was unconstitutionally unparticularized and overbroad. Additionally, they were retained and searched by the FBI despite the fact that the warrant was quashed and Daugherty and his father requested their return. Also, here similarly to Smith the police had probable cause to believe that the devices contained child sexual abuse material. (Smith) However, the existence of probable cause- as opposed to reasonable suspicion-merely allows for a slightly greater delay in seeking the warrant. Even if probable cause existed to seize the items, the police interest was delimited by its obligation to seek a search warrant without unreasonable delay.
d) The Lack of Justification for the Delay Weighs in Favor of Suppression
The fact that a police officer has a generally heavy caseload or is responsible for a large geographical district does not without more entitle the officer to wait without limit before applying for a search warrant to search an item that the officer has seized. That is because the Fourth Amendment imposes a time-sensitive duty to diligently apply for a search warrant if an item has been seized for that very purpose..." There is no justification for the delay in this case. Local law enforcement seized Daugherty's devices on March 21, 2018, and then transferred such to the FBI on or April 11, 2018, after it became
abundantly clear they lacked cause to retain or search them. The FBI then maintained possession of Daugherty's property for 686 days or one year 10 months and 15 days after the dismissal of the warrant in this case. Where the police fail to seek a warrant in a reasonable amount of time pursuant to Smith, no exceptions to the exclusionary rule apply and suppression is required. Id. at 213 ("[W]e have stated and clarified principles above that shall guide law enforcement officers with respect to what circumstances establish an unreasonable delay under the Fourth Amendment... These principles shall... inform the application of the exclusionary rule in future cases."). The exclusionary rule must be applied. Evidence must then be excluded when the police have violated Constitutional rights deliberately, recklessly, or with gross negligence. In the instant case, Wright's delay amounted to gross negligence. Therefore, the 686-day delay in seeking a valid warrant to search the devices was a violation of the Fourth Amendment and suppression is required.
All property seized must be returned to its rightful owner once the criminal proceedings have terminated. Cooper v. City of Greenwood , 904 F.2d 302, 304 (5th Cir. 1990) ; United States v. Farrell , 606 F.2d 1341, 1343 (D.C. Cir. 1979) ; United States v. LaFatch , 565 F.2d 81, 83 (6th Cir. 1977). When no charges are pending against an individual, any of the individual's property in the possession of the State should be immediately returned to him. See People v. Jaudon , 307 Ill. App. 3d 427, 447, 241 Ill.Dec. 76, 718 N.E.2d 647 (1999) (citing 725 ILCS 5/108-2 (West 1996) ); People v. Jackson , 26 Ill. App. 3d 845, 848-49, 326 N.E.2d 138 (1975). After criminal proceedings conclude, the government has no right to retain a defendant's property. United States v. Rodriguez-Aguirre , 264 F.3d 1195, 1213 (10th Cir. 2001). "t is fundamental to the integrity of the criminal justice process that property involved in the proceeding, against which no Government claim lies, be returned promptly to its rightful owner." United States v. Wilson , 540 F.2d 1100, 1103 (D.C. Cir. 1976).
People v. McCavitt, 438 Ill. Dec. 102, 109 (Ill. App. Ct. 2019)
The Supreme Court put the scope of such a wholesale seizure in perspective by explaining that it “would typically expose the government to far more than the most exhaustive search of a house.” Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2491, 189 L.Ed.2d 430 (2014) (emphasis in original).
United States v. Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015)
"I can't see a court allow a general search warrant, after all they are unconstitutional, and it's been well established by the courts that they are unconstitutional. (Marron v. United States, 275 U.S. 192 (1927) all the way to (Groh v. Ramirez, 540 U.S. 551 (2004)" (Daugherty 2024)
“At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach.” United States v. Griffith, 867 F.3d 1265, 1270-71 (D.C. Cir. 2017)
“Although we pay "great deference" to the judge's initial determination of probable cause, a warrant application cannot rely merely on "conclusory statement[s]." Id. at 236, 239, 103 S.Ct. 2317 (citing Nathanson v. United States , 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933) ).” United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017)
The Supreme Court has long distinguished between arrest warrants and search warrants. See Steagald v. United States , 451 U.S. 204, 212-13, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). An arrest warrant rests on probable cause to believe that the suspect committed an offense; it thus primarily serves to protect an individual's liberty interest against an unreasonable seizure of his person. Id. at 213, 101 S.Ct. 1642. A search warrant, by contrast, is grounded in "probable cause to believe that the legitimate object of a search is located in a particular place." Id. Rather than protect an individual's person, a search warrant "safeguards an individual's interest in the privacy of his home and possessions against the unjustified intrusion of the police."
United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017)
Regardless of whether an individual is validly suspected of committing a crime, an application for a search warrant concerning his property or possessions must demonstrate cause to believe that "evidence is likely to be found at the place to be searched." Groh v. Ramirez , 540 U.S. 551, 568, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Moreover, "[t]here must, of course, be a nexus ... between the item to be seized and criminal behavior." Warden, Md. Penitentiary v. Hayden , 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017)
The Fourth Amendment requires that warrants "particularly describe" the "things to be seized." U.S. Const. amend. IV. That condition "ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Garrison , 480 U.S. at 84, 107 S.Ct. 1013. Consequently, a warrant with an "indiscriminate sweep" is "constitutionally intolerable." Stanford v. Texas , 379 U.S. 476, 486, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). We will hold a warrant invalid when "overly broad." United States v. Maxwell , 920 F.2d 1028, 1033-34 (D.C. Cir. 1990).
United States v. Griffith, 867 F.3d 1265, 1275 (D.C. Cir. 2017)
The warrant's overbreadth is particularly notable because police sought to seize otherwise lawful objects: electronic devices. Courts have allowed more latitude in connection with searches for contraband items like "weapons [or] narcotics." Stanford , 379 U.S. at 486, 85 S.Ct. 506 (internal quotation marks omitted). But the understanding is different when police seize "innocuous" objects. See Andresen v. Maryland , 427 U.S. 463, 482 n.11, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). Those circumstances call for special "care to assure [the search is] conducted in a manner that minimizes unwarranted intrusions upon privacy." Id. ; see also 2 LaFave, Search & Seizure § 4.6(d).
United States v. Griffith, 867 F.3d 1265, 1276 (D.C. Cir. 2017)
Anything on the internet could be considered social media (Packingham v North Carolina - US Supreme Court 2017)
The Court held that social media—defined broadly to include Facebook, Amazon.com, The Washington Post, and WebMD—is a "protected space" under the First Amendment for lawful speech (Packingham v North Carolina - US Supreme Court 2017)
42 U.S. Code § 1983 - Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
(R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub. L. 104–317, title III, § 309©, Oct. 19, 1996, 110 Stat. 3853.)
"the Court held that social media—defined broadly to include Facebook, Amazon.com, The Washington Post, and WebMD—is a "protected space" under the First Amendment for lawful speech.
Justice Anthony Kennedy explained the decision: "A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more."
"... sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge."
"It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech'."
The Fourth Amendment prohibits general search warrants and requires that a warrant describe, with particularity, the place to be searched and the persons or things to be seized. U.S. Const. amend. IV. The purpose of the particularity requirement is to “protect persons against the government's indiscriminate rummaging through their property” and to “[prevent] the searching for and seizure of items that there is no probable cause to believe are either contraband or evidence of a crime” United States v. Jones, 54 F.3d 1285, 1289–90 (7th Cir.1995) (citing Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); United States v. Sims, 553 F.3d 580, 582 (7th Cir.2009) (citing Maryland v. Garrison, 480 U.S. 79, 84–85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987)). “By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Garrison, 480 U.S. at 84, 107 S.Ct. 1013; United States v. Vitek Supply Corp., 144 F.3d 476, 481 (7th Cir.1998) (“This requirement ... ensures that the scope of a search will be confined to evidence relating to a specific crime that is supported by probable cause.”)
To satisfy the particularity requirement, a warrant “must describe the objects of the search with reasonable specificity, but need not be elaborately detailed.” Vitek Supply Corp., 144 F.3d at 481. “In practice, courts have ... demanded that the executing officers be able to identify the things to be seized with reasonable certainty and that the warrant description must be as particular as circumstances permit.” Jones, 54 F.3d at 1290 (citing United States v. Brown, 832 F.2d 991, 996 (7th Cir.1987)). Accord United States v. Yusuf, 461 F.3d 374, 395 (3d Cir.2006) (“The breadth of items to be searched depends upon the particular factual context of each case and also the information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate.”) Furthermore, when the search involves digital media, the Seventh Circuit has instructed police officers “to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.” United States v. Mann, 592 F.3d 779, 786 (7th Cir.2010).
United States v. Winn, 79 F. Supp. 3d 904, 918-19 (S.D. Ill. 2015)
My Illegal Search Warrant
The warrant didn't state what they were supposed to seize within the devices, instead they seized everything in the device, making it a general warrant.
“The major, overriding problem with the description of the object of the search—“any or all files”—is that the police did not have probable cause to believe that everything on the phone was evidence of the crime of public indecency.”
United States v. Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015)
“ ‘[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’ ” (Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068, quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n 5, 104 S.Ct. 3424, 82 L.Ed.2d 737).
... and if you all don't remember Dirty Harrry AKA FCCBodyguard AKA Squashatoad is the one that started ALL this shit.
ALL POSTED in February of 2018
The threat against the school on the Hate and Flame (which he visited) was posted shortly after his last post on twitter.
Dirty Harry AKA FCCBodyguard was in communication with the FBI in August of 2018 claiming I lied to the police and FBI, he has also been the one in communication with both the state and public defender's office and has been on here harassing me. This person has motive; he wants me in jail. BUT THE STATE AND THE PUBLIC DEFENDERS' OFFICE IS TOO STUPID TO SEE IT!!
The Device Warrant Was Patently Unconstitutional
The Device Warrant was invalid because it lacked probable cause and was an unconstitutional general warrant. Moreover, in obtaining that warrant, the government intentionally omitted material facts that demonstrated that they lacked probable cause.
The Device Warrant Lacked Probable Cause
The Device Warrant lacked probable cause because it was based on the statement of an anonymous informant whose credibility was completely uncorroborated by subsequent investigation. Instead, the warrant affidavit rests on the fact that a threatening online post contained publicly available information-Daugherty's name, ham radio signal, and a photograph.
The Device Warrant Was an Unlawful General Warrant
The Device Warrant was an unconstitutional general warrant because it was completely lacking in particularity and as a result an overbroad' general warrant of the type "abhorred by the colonists" that lead to the creation of the Fourth Amendment and the particularity clause. Coolidge v. New Hampshire, 467, 91 S.Ct. 2022, 2038 (1971); see also Carpenter v. United States, 138 S.Ct. 2206, 2239-2240 (2018). Specifically, the warrant here failed to identify the data to be seized from the electronic devices or even the crime for which the police were required to restrict its search.
The search here was unlimited in that it allowed a search of any computer or computer storage device for the following: any and all evidence of dominion and control over the computer, specifically, but not limited to, a computer possessing MAC address "EC:4F:82:29:84:03" or IP address "72.9.123.215"; peer to peer file trading software; any and all information pertaining to dates and times of access to the computer; any and all information pertaining to internet searches pertaining to posts regarding threats of violence directed towards schools or public officials; records and other items which evidence ownership or use of computer equipment found in the above residence; including but not limited to sales receipts, bills for internet access and handwritten notes, records evidencing occupancy or ownership of the premises described above including but not limited to utility and telephone bills, mail envelopes or address correspondence. This does not limit the search to evidence of the threatening post. The language specifically "includes but is not limited to" the subsequent clauses which provide an illustrative but non-exclusive list of what the government may search for and seize. The warrant did not limit the searches of any of the devices to any particular category(s) of information for example: web browser history, cookies, photographs, emails, etc.
Here the Device Warrant uses the same "any and all" language as Winn, the additional broad phrase "including but not limited to," followed by an illustrative list of various types of data. This illustrative list includes types of data for which there is not probable cause. It imposes no temporal limitations and fails to even impose the minimal restriction from Winn limiting the search to evidence of a specific criminal statute. The Device Warrant, at one point, makes an oblique reference to something resembling the facts in the case when it states "any and all information pertaining to internet searches pertaining to posts regarding threats of violence directed towards schools or public officials." However, that clause is in and of itself both overbroad and insufficiently particular. The affidavit did not contain any information establishing threats to public officials or towards schools in general. Had they actually connected Daugherty to that post (which they did not) the only possible thing they could investigate him for was the March 16, 2018, threat "FUCK YOU YOU STALKING MOTHER FUCKERS. I'LL SHOW YOU WHO IS AUSTIC. I'LL GO TO FUCKING MEMORIAL ELEMENTARY SCHOOL AND MAKE SANDY HOOK LOOK LIKE A SUNDAY SCHOOL PICNIC" posted on hateandflame.com. This is a basic tenant of probable cause and particularity a search for evidence of one crime does not allow a search for evidence of other crimes. Furthermore, there is no reason to believe they would find information relevant to their investigation in the form of an "internet search" as there were no facts that established any reason to believe an "internet search" was done for public officials or schools. Therefore, this clause (if it could be considered a clause at all) was both overly broad and lacking in particularity.
The Government Intentionally Omitted Material Facts from the Device Warrant bed Affidavit that If Known to The Judge Would Have Demonstrated an Affirmative Lack of Probable Cause
Officer Christian Nelson intentionally omitted material facts demonstrating that police affirmatively lacked probable cause to execute the Device Warrant. Specifically, he intentionally withheld information regarding the nature of the website itself, the likelihood that individuals there regularly impersonated one another and attempted to harm one another's reputations, and that there was a very real possibility that this had happened in Daugherty's case. Under Franks, evidence seized under a warrant must be suppressed when the defendant shows that "(1) the affidavit in support of the warrant contains false statements or misleading omissions, (2) the false statements or omissions were made deliberately or with reckless disregard for the truth, and (3) probable cause would not have existed without the false statements and/or omissions." Here, officer Nelson made numerous intentional omissions which if they had been known to the judge would have informed them that the threatening post likely came from a third party (potentially the tipster themselves) rather than Todd Daugherty.
First, officer Nelson, intentionally omitted that the initial tip itself was suspect because the tipster used the Tor network as a means of obscuring their location and identity. Although the person claimed to be from the United States, their IP address resolved in France to a node identified with the Tor network. This information would have demonstrated to the issuing judge that the tipster had an above average knowledge of computer networks and was utilizing them in this case to mask their identity from the FBI in making accusations against Daugherty. Furthermore, this information would also have demonstrated they were either lying about their actual location or taking steps to conceal it, further undermining their credibility.
Second, Officer Nelson intentionally omitted an explanation of the contents of the website the post was made, www.hateandflame.com. He did not explain that the site was a virtual cesspool of individuals impersonating, antagonizing, threatening, and doxing one another. Other than the post attributed to Daugherty, none of the individuals used their real names to post. Instead, they used obviously fake names like "Ernist Hemingay", "Buddy Che Hinton", "Harry Tard Snortz" "Loyd Davies, Timelord" "THE PINKLE WHEEZLE", "STAINLESS STEEL FUCKBOT" or just "." Nor did any of them use real photographs of themselves as their profile photos with the exception being the post allegedly made by Todd Daugherty. Nor did he explain that Thomason recognized the photographs on the post of Daugherty holding a gun from a previous incident or that Daugherty explained he had previously posted them on a blog making them available to anyone on the internet to use. Further, he did not reveal that during the days leading to the threatening post, many of these individuals were accusing one another of posting under multiple account names. This would have greatly undermined the value of paragraphs two and five which attach the account to Daugherty through an image of him and his ham radio call sign. It also would have provided credence to Daugherty's statement in paragraph four that he was being set up by a member of the online community.
Third, he did not reveal that he had no technical means of identifying Todd Daugherty as the person who posted the threat. When he submitted the affidavit, while he had obtained Todd Daugherty's IP and MAC address from Daugherty's internet service provider, he had not obtained or executed a search warrant for the web logs from www.heatandflame.com and he therefore could not confirm that the posting was linked to an account or computer owned by Daugherty. Nor did he explain to the judge that he had no idea what credentials an individual must supply in order to access the website, what the policies on impersonating others are, or how they are enforced. Had he fully explained that he had methods of verifying the informant's claims but had yet to employ any of them, the judge likely would not have signed off on the warrant until those investigations were completed.
Finally, officer Nelson hid the fact that prior to his application, multiple individuals had provided information to law enforcement that supported Daugherty's claims that he was being "set up" by someone online. Specifically, he omitted that on March 18, 2018, Todd Daugherty's brother, Jeremy Daugherty, contacted the Taylorville police department and provided links to the hateandflame website demonstrating that individuals were making posts purporting to be Todd Daugherty while he was in police custody. He also omitted mention that a Canadian man named Karl Madera contacted the State's Attorney Mike Havera to tell him that Todd Daugherty was being set up by someone named Bryan Crow. Again, these facts both undermined the value of paragraphs two and five and demonstrated the potential truth of Daugherty's claims in paragraph 4. Had the judge been aware of all the circumstances surrounding the investigation and the possibility that Daugherty was being set up by a member of a toxic online community known for impersonating people, they never would have signed a warrant to seize and search every device in his home.
Agent O'Sullivan Conducted a Warrantless Search of the Devices
FBI agent William O'Sullivan executed a warrantless search of the devices after the Device Warrant was quashed and the charges against Daugherty were dismissed for a lack of probable cause. Therefore, all fruits of that search must be suppressed. Warrantless searches are per se unreasonable, absent limited exceptions. Furthermore, probable cause must exist not only at the time law enforcement obtains a warrant, but also at the time the warrant is executed. Where a search warrant is issued on probable cause, changed circumstances or new information can negate a prior determination of probable cause. When new circumstances call into question an original finding of probable cause, the officer must bring the new information to the issuing magistrate's attention. Thus, when a definite and material change has occurred in the facts underlying the magistrate's determination of probable cause, it is the magistrate, not the executing officers, who must determine whether probable cause still exists. Therefore, the magistrate must be made aware of any material new or correcting information. Here, although the government initially obtained a warrant for the device in question on March 21, 2018, by, March 29, 2018, the government knew they no longer had probable cause to prosecute Daugherty. That is when police learned that neither Daugherty's IP address, nor his MAC address had been used to post on hateandflame.com during the time of the threatening post. Instead, they learned that the IP address responsible for the threatening post was associated with the TOR network and was therefore anonymous. Further, police learned that 90% of people posting on the website were using Tor or proxy sites; no registration was required; no email addresses were checked; as a result of all this anybody could post as anybody else and impersonation is part of the status quo for the board. All of this simply confirmed what police had been told by multiple witnesses and what was readily apparent from the fact that someone continued to post as Daugherty while he was incarcerated and lacked access to the internet-that Todd Daugherty was being set up by someone posting on hateandflame.com using his name and likeness. Despite confirming that Daugherty could not be connected to the threat and that they lacked probable cause, police gave all of the devices to the FBI on April 11, 2018, and requested that
they conduct a search.
Furthermore, on April 16, 2018, the government filed motion to dismiss the case based on the following facts: (1) the website used to disseminate the threat did not require any login credentials, (2) while Daugherty was in custody more messages appeared under his name, (3) posts on the website were made by people impersonating "judges, the president, and other such individuals" (4) Daugherty's internet activity showed nothing to implicate him in the case. At 11:32 a.m. on April 16, 2018, the court granted the motion which specifically stated that any warrants or summonses previously issued were
quashed. Despite the lack of a warrant or probable cause, Agent O'Sullivan withdrew the devices from storage at 8:20 p.m. on that same day, April 16, 2018 and created an inventory. It was not until three days after the warrant had been quashed that he began the process of extracting the contents pursuant to the invalid (and at that point non-existent) Device Warrant. Then, on April 23, 2018, a week after the warrant had been quashed, O'Sullivan began to search the device. During that warrantless search O'Sullivan found what he noted what appeared to be a computer-generated image of a minor child with an adult male penis in his mouth. Thus, the evidence discovered here was discovered after the Device Warrant was quashed and
was therefore a warrantless search. Furthermore, the probable cause on which the Device Warrant was had dissipated prior to the Taylorville police department providing the devices to the FBI to conduct the searches.
The Federal Warrant Contains Material Misstatements and Omissions Regarding the Device Warrant and the Case Against Daugherty
The Federal Warrant application drafted by Special Agent Anthony Wright misrepresents the nature of the FBI's possession of the devices and the validity of the Device Warrant. If these misrepresentations and omissions were excised or corrected in the warrant application for the Federal Warrant, Magistrate Tom Schanzle-Haskins would not have signed Federal Warrant. First, paragraph six of the Federal Warrant states that the Taylorville Police department seized the devices "based on a state search warrant related to threats of a mass shooting against Memorial Elementary School in Taylorville, Illinois made by Daugherty." It does not explain that the case against Daugherty had since been dismissed for a lack of probable cause and that the warrants on which they were seized was subsequently quashed for the same reasons. Second, paragraphs seven and eight of the Federal Warrant imply that the search was conducted on April 6, 2018, before the warrant was quashed. However, the search was not conducted until after probable cause had dissipated and the warrant had been formally quashed by a judge at the request of the prosecution for a lack of probable cause. The Federal Warrant essentially laundered all of the problems with the investigation into Daugherty, the Device Warrant, and the illegal execution, by merely claiming that they had a valid warrant and stumbled across contraband in plain view. With this whitewashed version of the events surrounding the investigation into the hateandflame incident and Daugherty's devices, there can be no wonder why the magistrate signed the Federal Warrant. They were under the impression that the FBI, acting on a valid state warrant, stumbled across contraband in plain view and acted according to the law to obtain a new warrant. Had the magistrate been aware of all the circumstances surrounding the investigation into Daugherty and the search and seizure of his devices he never would have signed the Federal Warrant.
Daugherty is Entitled to a Hearing on the Execution of the Search
Should the court find that agent O'Sullivan was allowed to execute a search pursuant to the Federal Warrant, Daugherty is entitled to a hearing on the methodology used to conduct the search of the devices to examine whether it adhered to the constitutional strictures. In the context of electronic device searches, the Fourth Amendment requires the courts to "assess the propriety of the government's search methods (the how) ex post in light of the specific circumstances of each case. So, even if courts do not specify particular search protocols up front in the warrant application process, they retain the flexibility to assess the reasonableness of the search protocols the government actually employed in its search after the fact, when the case comes to court, and in light of the totality of the circumstances." To the extent the Court finds Device Warrant put some restrictions on the subsequent search, it is clear that it did not authorize a search for child pornography or child sexual abuse material. Therefore, the contraband in question was beyond the scope of the warrant and the government can only proceed by claiming that it was in "plain view." Thus, unless the State concede suppression is mandated, a hearing is required to "assess the government's search techniques" and test this claim.
The Federal Warrant Was Not Sought Within a Reasonable Time Period of the FBI's Warrantless Seizure
Setting aside the problems with the initial Device Warrant, the evidence must be suppressed because the government waited almost two years to seek a Federal Warrant to re-search the devices. This unreasonable delay in seeking a warrant was an additional violation of Daugherty's constitutional rights.
"[T]he Fourth Amendment imposes a time-sensitive duty to diligently apply for a search warrant if an item has been seized for that very purpose, and all the more so if the item has been warrantlessly seized." In making the determination that 31 days was unreasonable in ordinary cases the court examined four factors: (1) the length of the delay, (2) the importance of the seized property to the defendant, (3) whether the defendant had a reduced property interest in the seized items, and (4) the strength of the state's justification for the delay.
a) The length of the delay Weighs in Favor of Suppression
In Smith, the Second Circuit found a delay of 31 days or more in seeking a warrant is unreasonable. The court in Smith gave independent weight to the length of delay and concluded that a month-long well exceeds what is ordinarily reasonable. In the instant case, the affidavit seeking to search the electronic devices was filed 686 days or one year 10 months and 15 days after the dismissal of the warrant in this case. "If the police have seized a person's property for the purpose of applying for a warrant to search its contents, it is reasonable to expect that they will not ordinarily delay a month or more before seeking a search warrant." (Smith) The officers in the instant case waited over 22 times longer than the 31 days in Smith to seek a search warrant for the property seized. Therefore, the delay weighs strongly in favor of suppression.
b) The Importance of the Seized Property Weighs in Favor of Suppression
In Smith, the Court noted "our starting point is to consider the nature of the property seized: a personal tablet computer that is typically used for communication and for the storage of immense amounts of personal data. The sheer volume of data that may be stored on an electronic device like a Nextbook (or similar tablet computer products like an Apple iPad) raises a significant likelihood of that much of the data on the device that has been seized will be deeply personal and have nothing to do with the investigation of criminal activity. For this reason, we have recognized the special concerns that apply when law enforcement seize and search people's personal electronic data and communication devices." "While physical searches for paper records or other evidence may require agents to rummage at least cursorily through much private material, the reasonableness of seizure and subsequent retention by the government of such vast quantities of irrelevant private material was rarely if ever presented in cases prior to the age of digital storage." (United States v. Ganias) "Indeed, this fundamental distinction between one's ordinary personal effects and one's personal electronic devices has persuaded the Supreme Court to accord broader constitutional protection when police seize a person's 'smart' cell phone." Id. The Supreme Court has observed that "modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." (Riley v California) In the case at bar, law enforcement retained all fifteen items seized from Daugherty's home including: a black and blue Seagate hard drive, serial number NA7DWTK4; one Seagate 1TB hard drive, serial number 5vPG12DV, a Cyperton computer tower, serial number GA-78LMT-USB3; a Compaq computer, serial number CNH4520P00; a Gateway 7320 laptop, serial number N3451-710- 03782; a Gateway computer, serial number PTE590XD01960595B2700; three DVD-Rs, one CDR, one CTI router, and four assorted USB drives. Warrant Return, 18-MR-40. This goes far beyond the single tablet seized in Smith and weighs strongly in favor of suppression.
c) Daugherty's Property Interests in His Devices Weighs in Favor of Neither Party
According to Smith, a defendant may have a reduced property interest because of a consent to a seizure or search or by voluntarily relinquishing property to a third party. In the alternative, one's property interest may be diminished because of the existence of probable cause. However, even in the event that probable cause rather reasonable suspicion existed, "...the police's interest was delimited by the obligation to seek a search warrant without unreasonable delay." "That is because '[t]he longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be, for the obvious reason that a longer seizure is a greater infringement than a shorter one." The court opined in Smith that the existence of probable cause was relevant to Smith's possessory interest, but was far from dispositive to deciding the reasonableness of the delay in seeking the search warrant. Here, Daugherty did not consent to a seizure or search the 15 items retained by the FBI. Instead, they were obtained through the use of a warrant that lacked probable cause, was obtained through the use of material misstatement and omissions, and was unconstitutionally unparticularized and overbroad. Additionally, they were retained and searched by the FBI despite the fact that the warrant was quashed and Daugherty and his father requested their return. Also, here similarly to Smith the police had probable cause to believe that the devices contained child sexual abuse material. (Smith) However, the existence of probable cause- as opposed to reasonable suspicion-merely allows for a slightly greater delay in seeking the warrant. Even if probable cause existed to seize the items, the police interest was delimited by its obligation to seek a search warrant without unreasonable delay.
d) The Lack of Justification for the Delay Weighs in Favor of Suppression
The fact that a police officer has a generally heavy caseload or is responsible for a large geographical district does not without more entitle the officer to wait without limit before applying for a search warrant to search an item that the officer has seized. That is because the Fourth Amendment imposes a time-sensitive duty to diligently apply for a search warrant if an item has been seized for that very purpose..." There is no justification for the delay in this case. Local law enforcement seized Daugherty's devices on March 21, 2018, and then transferred such to the FBI on or April 11, 2018, after it became
abundantly clear they lacked cause to retain or search them. The FBI then maintained possession of Daugherty's property for 686 days or one year 10 months and 15 days after the dismissal of the warrant in this case. Where the police fail to seek a warrant in a reasonable amount of time pursuant to Smith, no exceptions to the exclusionary rule apply and suppression is required. Id. at 213 ("[W]e have stated and clarified principles above that shall guide law enforcement officers with respect to what circumstances establish an unreasonable delay under the Fourth Amendment... These principles shall... inform the application of the exclusionary rule in future cases."). The exclusionary rule must be applied. Evidence must then be excluded when the police have violated Constitutional rights deliberately, recklessly, or with gross negligence. In the instant case, Wright's delay amounted to gross negligence. Therefore, the 686-day delay in seeking a valid warrant to search the devices was a violation of the Fourth Amendment and suppression is required.
All property seized must be returned to its rightful owner once the criminal proceedings have terminated. Cooper v. City of Greenwood , 904 F.2d 302, 304 (5th Cir. 1990) ; United States v. Farrell , 606 F.2d 1341, 1343 (D.C. Cir. 1979) ; United States v. LaFatch , 565 F.2d 81, 83 (6th Cir. 1977). When no charges are pending against an individual, any of the individual's property in the possession of the State should be immediately returned to him. See People v. Jaudon , 307 Ill. App. 3d 427, 447, 241 Ill.Dec. 76, 718 N.E.2d 647 (1999) (citing 725 ILCS 5/108-2 (West 1996) ); People v. Jackson , 26 Ill. App. 3d 845, 848-49, 326 N.E.2d 138 (1975). After criminal proceedings conclude, the government has no right to retain a defendant's property. United States v. Rodriguez-Aguirre , 264 F.3d 1195, 1213 (10th Cir. 2001). "t is fundamental to the integrity of the criminal justice process that property involved in the proceeding, against which no Government claim lies, be returned promptly to its rightful owner." United States v. Wilson , 540 F.2d 1100, 1103 (D.C. Cir. 1976).
People v. McCavitt, 438 Ill. Dec. 102, 109 (Ill. App. Ct. 2019)