General Search Warrant

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The Affidavit for the Search Warrant

The Search Warrant (The General Search Warrant)

The warrant seized every computer and did not state what the crime was nor what they were supposed to seize within the computers. The warrant was a device warrant without particularities making it a General Search warrant. General warrants are unconstitutional, and it has been well established by the courts that they are unconstitutional, under the fourth amendment. Police officers who write the and use warrants that are general warrants do not get qualified immunity (Groh v Ramirez US Supreme Court 2004)

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Other issues with the warrant are:

1. they lacked probable cause.

2. The affidavit wasn't incorporated into the warrant.

3. There were no protocols set.

[NELSON WAS OFFICER OF THE YEAR]

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Correction:

Other issues with the warrant are:

1. The tip they received was uncorroborated, anonymous tips must be corroborated with an independent investigation to make sure the tip is valid.

2. they lacked probable cause.

3. The affidavit wasn't incorporated into the warrant.

4. There were no protocols set.

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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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“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)

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“ ‘[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).

[ENDLESSLY REPEATING YOURSELF]

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The Device Warrant Was Patently Unconstitutional

I.

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.

a. 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 Fourth Amendment to the United States Constitution protects the right of the people against unreasonable searches. Illinois adopted the same protections for its people in Article I, Section 6 of the Illinois Constitution. Evidence obtained as the result of an illegal search or seizure is inadmissible and must be suppressed. 725 ILCS 5/114-12(a)(2).

The Supreme Court of Illinois adopted the "totality of the circumstances" test to determine the sufficiency of probable cause to issue a warrant under the Illinois Constitution's Article I, Section 6. People v. Tisler, 103 Ill. 2d 226, 245 (1984). However, the court still employs the prongs of the Aguilar- Spinelli test as a useful tool in determining whether an informant's statement gives rise to probable cause. See id. This is consistent with the Supreme Court's decision in Gates which explained that "an informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant... and "should be understood simply as closely intertwined issues that may usefully..." be used by courts to determine probable cause. Illinois v. Gates, 462 U.S. 213, 230 (1983). Aguilar-Spinelli requires a finding that: (1) the informant was reliable; and (2) that the informant had a sufficient basis of knowledge. See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v Texas, 378 U.S. 108 (1964).

The affidavit in this case fails both prongs of Aguilar-Spinelli. Although the affidavit explained that the FBI received a tip, it did not establish that the individual who made that tip was a known or reliable informant. Instead, it merely stated that the "FBI Springfield office received a tip..." that it was Todd E. Daugherty. Furthermore, it did not establish the individual's basis of knowledge that the post was made by Todd Daugherty as opposed to someone using his name and information to impersonate him. For example, it did not state that the tipster was a website administrator who had access to log files showing the user's connection to Todd Daugherty. Nor did it state the tipster was a friend or acquaintance who overheard him discussing the post. Therefore, neither prong of Aguilar-Spinnelli was met.

For similar reasons the Device Warrant fails the Gates "totality of circumstances" test. See Gates, 462 U.S. at 230. Neither probable cause nor reasonable suspicion can be based solely on an anonymous tip that merely provides the static details of a suspect's life along with an allegation of criminal conduct. See People v. Yarber, 279 Ill.App.3d 519, 529 (1996). This is true even when target has a prior criminal conviction. See id. at 523 (police confirmed Yarber's race, height, and weight through a criminal background check); see also United States v. Johnson, 427 F.3d 1053, 1057 (7th Cir. 2005).

In Florida v. J.L., an anonymous caller reported that a young black male was standing at a bus stop wearing a plaid shirt and carrying a gun. Florida v. J.L., 529 U.S. 266, 268 (2000). This anonymous tip was held to be insufficient even where police corroborated the location of the defendant and the type of clothing he was wearing. Id. at 272. This is because "[s]uch a tip...does not show that the tipster has knowledge of concealed criminal activity." Id. In Yarber, the fifth district extended that logic to a case where the anonymous tipster claimed that her best friends regularly bought cannabis from a man named Samuel Yarber and provided a physical description of Yarber, his address, and his place of employment. Yarber, 279 Ill.App.3d at 522. Police confirmed this information and stopped Yarber as he was leaving a train station. Id. at 521-522. However, the court found "reasonable and articulable suspicion requires more than corroboration of innocent details. Without verification of any other portion of the informant's tip, for all the police knew, Samuel Yarber was the victim of a malicious prank." Id. at 529. This holding is consistent with both federal and Illinois precedent. See e.g. United States v. Lopez, 907 F.3d 472, 482 (7th Cir. 2018) (when a tipster is unknown officers "must conduct and rely upon independent investigation to corroborate a tip before seizing a person."); People v. Lopez, 2018 IL App (1st) 153331 (App. Ct. 1st Dist. 2018) (insufficient corroboration of an anonymous tip).


The Yarber decision is controlling here. Here, Daugherty was linked to the account posting the threat by an anonymous tipster. The affidavit did not establish that the tipster was known to police or in any way reliable. To the contrary, they utilized a computer network designed by the U.S. Naval Research Laboratory to ensure they could not be traced. Although police confirmed that the user posting the threat used Daugherty's name, likeness and call sign, this was all publicly available static information. As the court pointed out in Yarber, "[w]ithout verification of any other portion of the informant's tip, for all the police knew, [Todd Daugherty] was the victim of a malicious prank." Yarber, 279 Ill.App.3d at at 529. The questionable value of the publicly available information in linking him to the account was further diminished by the affidavit's references to the fact that Daugherty told police he did not post on the site and was being "set up" by someone who was trying to have his ham radio license suspended by the FCC. The other information in the affidavit was merely gratuitous information about Daugherty's past conviction, for an unrelated threat on law enforcement and does nothing to establish a reliable link between him and the threatening post.
There are many ways in which an online post can be linked to a suspect. First, and by far the most common first step in any investigation is to connect someone through an IP address. To be sure, using an IP address to establish probable cause is not without problems. See e.g. Aaron Mackey et. Al. Unreliable Informants: IP Addresses, Digital Tips and Police Raids, pg. 6 (September 2016). However, courts have almost universally held that IP addresses are sufficient to establish probable cause to search the residence they are connected to. See e.g. United States v. Featherly, 846 F.3d 237, 240 (7th Cir. 2017); United States v. Vosburgh, 602 F.3d 512, 526-27 (3d Cir. 2010) (collecting cases from the Fifth, Sixth, Eighth, Ninth, and Tenth Circuits); United States v. Thomas, No. 5:12-CR-37 (CR), 2013 WL 6000484, at *24 (D.Vt. Nov. 8, 2013), aff'd, 788 F.3d 345 (2d Cir.2015); United States v. Perez, 484 F.3d 735, 740 (5th Cir. 2007); United States v. Morel, 922 F.3d 1 (1st Cir. 2019). Here, police obtained the Device Warrant before engaging in this critical first step. Police can also link people to online accounts through circumstantial evidence, however, that evidence must not consist solely of a few pieces of publicly available information. See e.g. United States v. Vayner, 769 F.3d 125 (2d Cir. 2014). In Vayner, the Second Circuit, while acknowledging that, "[t]he bar for authentication of evidence is not particularly high," held that a social media profile was not properly authenticated. Id. There the government introduced a printout of a "VK" profile (described as the Russian equivalent of Facebook) that a special agent printed off the internet the day of his testimony. Id. The Second Circuit overturned the Eastern District Court, finding that although "information about [the defendant] appeared on the VK page: his name, photograph, and some details about his life consistent with [the cooperating witness'] testimony about him... there was no evidence that [the defendant] himself had created the page or was responsible for its contents." Id. at 132. "Other than the page itself, moreover, no evidence in the record suggested that [the defendant] even had a VK profile page, much less that the page in question was that page. Nor was there any evidence that identity verification is necessary to create such a page with VK, which might also have helped render more than speculative the conclusion that the page in question belonged to [the defendant]." Id. at 133. The court hinted that the government's witness had both the motive and ability to create the page himself.

Specifically, the court stated, "all the information contained on the VK page allegedly tying the page to [the defendant] was also known by [the cooperating witness] and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant." Id. at 132. Here, similarly, while the post had Daugherty's name, call sign, and photograph, all that information was publicly available. A simple check of the website logs could (and in fact later did) confirm whether there was a possibility that someone else was behind the post-especially given the statement by Daugherty that he was being set up. Similarly, while probable cause, like authentication, is not a high bar; it does impose some requirements of due diligence on the part of the government before they obtain a warrant to conduct a search of every electronic device in someone's home. Simply restating information posted on a website, like www.hateandflame.com, and asserting they were done by someone who denies posting them is not enough. This is especially true where the affidavit contains no information about what credentials an individual must supply in order to access the website, what the policies on impersonating others are, or how they are enforced.
Because the Device Warrant relied on an uncorroborated tip by an anonymous informant and static, publicly available information, it was not supported by probable cause and must be suppressed.

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b. 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 amount of particularity required in a warrant can fluctuate depending on the nature of the case, evidence sought, and information known to police. See Andresen v. Maryland, 427 U.S. 463, 481 n. 10 & 11 (1976); United States v. Strand, 761 F.2d 449, 453 (8th Cir. 1985); United States v. Regan, 706 F.Supp. 1102, 1113 (S.D.N.Y.1989). However, one thing is clear-warrants must, at a bare minimum, state the crimes for which evidence is being sought. United States v. Cioffi, 668 F.Supp.2d 385, 390 (E.D.N.Y 2009); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009); United States v. Rosa, 626 F.3d 56 (2d Cir. 2010); United States v. Zemlyansky, 945 F.Supp.2d 438 (2d Cir. 2013); United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005); United States v. Clough, 246 F.Supp.2d 84 (D.M.E. 2003); United States v. Mink, 613 F.3d 995 (10th Cir. 2010); United States v. Hunter, 13 F.Supp.2d 574 (D. V.T. 1998); cf. United States v. Christie, 717 F.3d 1156 (10th Cir. 2013); United States v. George, 975 F.2d 72, 76 (2d Cir. 1992); United States v. Romain, 678 Fed.Appx. 23 (2d Cir 2017). This means the specific crime for which probable cause is found and not just a category of crime, as "[a]n unadorned reference to a broad federal statute does not sufficiently limit the scope of a search warrant." United States v. Leary, 846 F.2d 592, 602 (10th Cir. 1988); see also United States v. Spilotro, 800 F.2d 959, 965 (9th Cir.1986) (finding that search warrant violated particularity requirement where only limitation on scope of search was items to be seized had to be evidence of violation of one of thirteen statutes); United States v. Roche, 614 F.2d 6, 8 (1st Cir. 1980) (finding that search warrant violated particularity requirement where only limitation was reference to the mail fraud statute); Cassady v. Goering, 567 F.3d 628, 636 (10th Cir.2009); United States v. Clark, 31 F.3d 831, 836 (9th Cir. 1994). This is especially true where the statute is broad or language like "any or all data" accompanies the restriction. United States v. Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015). This rule applies because, "whatever new challenges computer searches pose in terms of particularity, it is always necessary – and hardly onerous – to confine any search to evidence of particular crimes." Cioffi, 668 F. Supp. 2d at 392.

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. Search Warrant, 18-MR-40 (emphasis added) (Exhibit F).
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. See In Matter of Black iPhone 4, 27 F.Supp.3d 74 (E.D.D.C. 2014) (Lists are illustrative rather than exclusionary where they include precursors like “[a]ll records...including" and then list different types of data). Lists of evidence that are illustrative rather than exclusionary or exhaustive should be heavily scrutinized. United States v. Wey, 2017 WL 257402 at *21-22 (S.D.N.Y. 2017). This is because those phrases "make the seizure list broader than the categories specifically listed." In Matter of Black iPhone 4, 27 F.Supp.3d at 78. Where such lists "merely identify generic classes of items and permit the seizure of virtually all conceivable documents" they cannot render an otherwise un-particularized warrant sufficiently particular. People v. Melamed, 178 A.D.3d 1079 (2d Dept. 2019).

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. See e.g. Winn, 79 F. Supp. 3d at 919; United States v. Hunter, 13 F.Supp.2d,574, 581 (D. V.T. 1998). It did not provide temporal limitations on the search. See e.g. United States v. Abboud, 438 F.3d 554, 576 (6th Cir. 2006) ("Failure to limit broad descriptive terms by relevant dates, when such dates are available to the police, will render a warrant overbroad."); United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (warrant "not sufficiently particular" in part because the "government did not limit the scope of the seizure to a time frame within which the suspected criminal activity took place"); United States v. Abrams, 615 F.2d 541, 545 (1st Cir. 1980) (deeming warrant insufficiently particularized and noting, among other things, that "[a] time frame should also have been incorporated into the warrant"). Instead, the Device Warrant authorized an unfettered search of every device in the household "not limited to" an illustrative list of categories of information.

Warrants for "any and all files" that "include[] but [are] not limited to" an illustrative list of various types of data found on a phone are patently unconstitutional. Winn, 79 F. Supp. 3d at 919. In Winn the Southern District Court of Illinois noted "[t]he 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. Id. Instead there "was probable cause to believe that only two categories of data could possibly be evidence of the crime: photos and videos." Id. Furthermore even "[w]ith respect to the categories of data for which the police did have probable cause--the photos and the videos-the warrant was not as particular as could be reasonably expected given the nature of the crime and the information the police possessed. The warrant merely described the category of data, rather than specific items, which allowed the police to seize all of the photos and videos on Winn's phone, as opposed to specific photos and videos..." but "Detective Lambert knew the precise identity and content of the photos/videos sought. However, he failed to mention the characteristics that made those photos/videos easily identifiable and distinguished them from others that were irrelevant. For example, the warrant could have described the location of the incident as well as the subjects of the images-children at a swimming pool, or more specifically young girls in swimsuits at the Mascoutah Public Pool." Id. at 920. The court further noted that there were no temporal limitations and the only limit implied by the warrant was an unadorned reference to a criminal statute. Id. at 921.
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. United States v. Wey, 2017 WL 257402 at *18 (S.D.N.Y. 2017). 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.

Similarly, the warrant mentions "peer to peer file trading software" this is both overbroad and insufficiently particularized. There is no mention of peer-to-peer file sharing in the affidavit for the device warrant. Therefore, it is overbroad. Similarly, it places no limits on what kind of peer-to-peer file sharing evidence the government may collect. Therefore, it is insufficiently particularized.
Finally, the warrant includes an "indicia of ownership" clause that allows for "records and other items which evidence ownership or use of computer equipment found in the above residence." Warrants allowing for searches of "indicia of ownership" have been rejected by courts across the country because they turn an otherwise valid warrant into a general warrant. See State v. Bock, 310 Or.App. 329 (Ct. Ap. Or. 2021); People v. Coke, 461 P.3d 508 (Colo. Sup. Ct. 2020); State v. Hamilton, No. 6:18-CR-57- REW-10, 2019 WL 4455997 (E.D. Ky. August 30, 2019); see also People v Herrera, 357 P.3d 1227 (Colo. Sup. Ct. 2015) (rejecting the use of such clauses to justify broad searches); United States v. Ford, 184 F.3d 566, 586 (6th Cir. 1999) (rejecting the use of similar clauses that would potentially allow limitless seizures of financial information).

In Bock, the Oregon Court of Appeals suppressed evidence recovered from a cell phone in part because of a clause allowing the government to search for "any evidence identifying the owner/user of the device." Bock, 310 Or.App. at 332. The court held that "regardless of whether the command to search for evidence of the owner or user of the device included a temporal limitation on the material subject to seizure... the search command violates the particularity requirement." Id. at 334. This is because "there is little information on the device that the state could not use to identify the defendant given the right circumstances and background information. Under such circumstances, the officer performing the search has the discretion to rummage freely throughout the device and seize nearly everything the exact practice that the particularity requirement was adopted to prohibit." Id. at 335. Similarly, in Hamilton, the District Court rejected the government's argument that broad
warrants are lawful because, "anything and everything in the Facebook account could be used to prove identity of the Facebook user and control of the account..." Hamilton, 2019 WL 4455997 at *5. The court reasoned that "[t]aken to its logical conclusion, this argument nearly obviates the particularity requirement altogether; almost anything in someone's social media data can be used to show they did (or did not) own and control that account." Id. The court elaborated, explaining that the government was
"certainly entitled to search for this information to a reasonable extent; for example, the registered user, email addresses, birth date, telephone number, physical address, and IP addresses associated with the account are likely to show ownership and control of the account. The breadth of information the search warrant required Facebook to disclose, however, amounted to "a general, exploratory rummaging" in [the defendant's] digital life that did not comport with the particularity requirement of the Fourth Amendment." Id.

The same logic from Bock and Hamilton applies to, and invalidates, the indicia of ownership "clause" here. One can only begin to imagine what might constitute "records and other items which evidence ownership or use of computer equipment found in the above residence." Nude photographs of the defendant, communications regarding his political affiliations, sexual orientation, medical history etc. could all demonstrate ownership of the computer equipment. As could IP addresses, web browser history, cookies, and text files. However, the warrant provides no explanation as to what the government may seize. Thus, the boundaries of this clause are left only to the imagination of the executing officer as they come across previously unidentified evidence during their unrestrained search. This is "the exact practice that the particularity requirement was adopted to prohibit." Bock, 310 Or.App. at 335.

The Device Warrant was a hopelessly unparticular and overbroad general warrant. Therefore, it violates the Fourth Amendment and Article I, Section 6 of the Illinois Constitution and any evidence obtained as a result of the warrant must be suppressed.