Ok folks, as I promised, here are the legal papers filed in the email case since the original filing. Typos are most likely mine. Comments are in [brackets], skipping the first few pages is recommened. Sorry it took so long, I recieved copies of this stuff only yesterday. ---Keith Henson KINKEL, RODIGER & SPRIGGS BRUCE DISENHOUSE 3393 Fourteenth Street Riverside, CAlifornia 92501 (714) 683-2410 GREINES, MARTIN, STEIN & RICHLAND MARTIN STEIN 9601 Wilshire Boulevard, Suite 544 Beverly Hills, California 90210-5215 (213) 859-7811 Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA H. KEITH HENSON, et al., Plaintiffs, vs. Raymond Carrillo, et al., Defendants. Case No. SA CV 90-021 JSL (RwRx) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (Electronic Communication Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.) PURSUANT TO RULE 12 (b), F.R.C.P.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: April 30, 1990 Time: 1:00 p.m. Courtroom: No. 2 Trial Date: None set TABLE OF CONTENTS MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; U.S.C. Section 2701, et seq.) Page 3 MEMORANDUM OF POINTS AND AUTHORITIES page 5 INTRODUCTION AND STATEMENT OF RELEVANT FACTS page 5 LEGAL DISCUSSION page 7 I. THE COMPLAINT SHOULD BE DISMISSED AS TO ALL NAMED DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER THE ELECTRONIC COMMUNICATION PRIVACY ACT. page 7 II. EVEN IF THIS COURT WERE TO CONCLUDE THAT THE SEARCH WARRANT WAS TECHNICALLY DEFICIENT, STILL DEFENDANTS ARE PROTECTED FROM SUIT BY THE DOCTRINE OF GOD-FAITH RELIANCE. THUS THE COMPLAINT SHOULD BE ORDERED DISMISS ON THIS ADDITIONAL GROUND. page 11 CONCLUSION page 13 TABLE OF AUTHORITIES Cases Burrows v. Superior Court page 10 13 Cal.3d 238 (1974) Harlow v. Fitzgerald, page 12 457 U.S. 800 (1982) People v. Dumas, page 10 Cal.3d 871 (1973) Robison v. Via, page 12 821 f.2d 913 (2d Cir. 1987) Tomer v. Gates page 12 811 f.2d 1240 (9th Cir. 1987) U.S. v. McLaughlin, 851 f.2d 283 (9th Cir. 1986) U.S. v. Michaelian, 803 f.2d 1042 (9th Cir. 1986) U.S. v. Spilotro 800 f.2d 959 (9th Cir. 1986) Statues 18 U.S.C. Section 2701 18 U.S.C. Section 2707 Constitutions Unites state Constitution, Fourth Amendment Rules Federal Rules of Civil Procedure, Rule 12(b) United States District Court for the Central District of California, Local Rule 7.6 Local Rule 7.9 Misc. 1986 U.S Cond Cong Adm Nes, Ann. TO PLAINTIFFS H. KEITH HENSON, ET AL., AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 30, 1990 at 1:00 p.m. or as soon thereafter as the matter may be heard in Courtroom 2 of the Honorable J. Spencer Letts, Judge of the United states district Court for the Central District of California, 751 Santa Ana Boulevard, Santa Ana, California 92701-4599, defendants County of Riverside, Grover C Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer, and John V. Mosley will bring on for hearing the accompanying Motion to Dismiss complaint for Declaratory Relief, and Damages (Electronic Communication Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.). Defendants' motion will be brought pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and will be based on this Notice of Motion and Motion, the attached memorandum of ports and authorities, and on such other and further documentation evidence and argument as may be presented in support of this motion. PLEASE TAKE FURTHER NOTICE that under Local Rule 7.6 of the United States District Court for the Central District of California, a party opposing a motion shall, not later than 14 days before the date set for hearing of the motion, serve upon all parties and file with the clerk of the court either (a) a brief, but complete memorandum containing a statement of all reasons in opposition to said motion, and the point and authorities upon which the opposition party will rely, or (b) a written statement that he will not oppose the motion. Under Local Rule 7.9, failure to file any required papers may be deemed by the court consent to the granting of the motion. Dated: March 27, 1990. Respectfully submitted, [boilerplate] [signed] Martin Stein [page 3] MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; 18 U.S.C. Section 2701, et seq.) Pursuant to the provisions of rule 12(b) of the Federal Rules of Civil Procedure, defendants [list], hereby move to dismiss the Complaint for declaratory relief and damages on file herein on the following separate grounds: 1. Plaintiffs have failed to allege sufficient facts to state a a claim for relief against the named defendants herein in that the allegations of the Complaint and attached documentation establish as a matter of law that defendant did not violate the provision of the ECPA in execution a facially valid search warrant. 2. Even assuming that a technical violation of the ECPA has properly been alleged by the plaintiffs in the instant case, the named defendants herein are entitled to dismissal on the basis of their good-faith reliance on the terms of a facially valid search warrant, pursuant to the provisions of 18 U.S.C. section 2707(d)(1). WHEREFORE, defendants [list] and each of the pray as follows: 1. That each of their motions to dismiss the Complaint be granted without leave to amend; 2. The the Complaint and each claim for relief alleged therein be ordered dismissed as against each of these defendants; 3. That plaintiffs be ordered to take nothing from defendants; 4. That defendants be awarded judgement for their cost of suit incurred herein; 5. That this court grant such other and further relief as it deems just and proper. Dated: March 27, 1990 [boiler plate/signed Martin Stein] [page 5] _MEMORANDUM OF POINTS AND AUTHORITIES_ _INTRODUCTION AND STATEMENT OF RELEVANT FACTS_ Plaintiffs seek damages and injunctive relief based on the purported acts of the named defendants herein in executing a facially valid search warrant. The assert that in executing the search warrant, defendants violated the provisions of the ECPA. More specifically, plaintiffs allege that at some unspecified date prior to January 12, 1988, defendants procured from the Riverside County Superior Court a search warrant which authorized, in general, a search of the facilities of Alcor. Plaintiffs assert, however, that the search warrant did not purport to reach, nor was it intended to reach any of plaintiffs E_Mail. Complaint [paragraph] 5. [footnote--Plaintiffs assert that E-Mail was the facilitation, sending and receipt of electronic mail via computerized modems. Complaint, para 4] Plaintiffs assert that pursuant to the search warrant, on January 12, 1988, defendants searched Alcor's premises and removed a variety of items including the electronic media containing plaintiffs E-Mail. Complaint [paragraph] 6. Plaintiffs conclude by alleging that notwithstanding that defendants and each of the were informed that they had taken, along with materials described the warrant, E-Mail belonging to plaintiffs, that defendants herein knowingly and willfully (a) continued to access the electronic and magnetic media containing plaintiffs' E-Mail and (b) continued to deny access to plaintiffs to such E_Mail for many months although a demand was made for the return of said E-Mail. Plaintiffs thus concluded that defendant's wrongful access and retention of plaintiffs' E-Mail was intentional within the meaning of 18 U.S.C. Section 2707, Complaint, paragraph 12. Notwithstanding the allegations of plaintiffs' Complaint, it can be readily determined from a review of the search warrant attach thereto (see Attachment A) that defendants did not violate or exceed the specific terms of the search warrant order obtained by them prior to its execution at Alcor's premises. This court should therefore determine that, as a matter of law, there has been no violation of the ECPA, and plaintiffs have failed to state a claim for relief, thus requiring a dismissal of the complaint as to all defendants. Even if it were otherwise, the named defendants are entitled to dismissal on the basis of their good-faith reliance on a facially valid Riverside County Superior Court search warrant and thus, their good-faith reliance on that search warrant is a complete defense as to the instant action, pursuant to 18 U.S.C. section 2707(d)(1). [page 7] _LEGAL DISCUSSION_ THE COMPLAINT SHOULD BE DISMISSED AS TO ALL NAMED DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER THE ECPA Plaintiffs seek to pursue the instant civil action based on a purported violation of the ECPA of 1986. Specifically, plaintiffs seek to pursue an action pursuant to 18 U.S.C. section 2707 which provides that a provider of electronic communication service, subscriber or customer of any such service aggrieved by any purported violation of this section my recover from any person or entity who knowingly or intentionally violates the Act. Thus, plaintiffs assert that defendants knowingly and wilfully accessed electronic and magnetic media containing their E-Mail and continued to deny access to plaintiffs of such E-Mail even after a demand for return of said E-Mail had been made and that such seizure was not authorized by the specific terms of a Riverside County Superior Court search warrant which authorized, in general, a search of the facilities of Alcor Life Extension Foundation, which maintained facilities at its place of business to facilitate the sending and receiving of electronic mail via computerized modems and which electronic mail facility was utilized by plaintiffs in this case. We note preliminarily that while plaintiffs seek to assert a violation of the ECPA they make no claim that defendants violated their Fourth Amendment rights to be free from illegal searches and seizures, in executing the search warrant in question. Rather their claim is strictly based on a non-constitutional violation of their rights under the Act, based on their allegation that the search warrant did not purport to reach, nor was it intended to reach, any of their E-Mail. Defendants submit that while plaintiffs are not required to allege any Fourth Amendment violation of rights in order to proceed with their ECPA cause of action, their failure to assert a Fourth Amendment violation is significant. Here, the failure to make an allegation of Fourth Amendment violation is critical since it would appear that if the search warrant was facially valid and if defendants could not be said to have violated any of plaintiffs' Fourth amendment Rights, then this court should according find that no violation of the ECPA occurred. It is submitted that the ultimate review of the search warrant, in terms of facial validity should be the same whether this court be guided by Fourth Amendment principles or the specific terms of the Act. Turning to the search warrant which is included as attachment A to the complaint, it appears that it provided for a search of the premises at 12337 [wrong address] Doherty St. in the City and County of Riverside, apparently the address of the Alcor Life Extension Foundation. According to the search warrant authorization, a search was authorized by a judge of the Riverside Superior court for property and other items potentially used to commit a felony, property possessed with intent to commit a public offense and/or property tending to show that a felony had been committed. The search warrant specifically authorized the search and potential seizure of " 1. All electronic storage devices capable of storing electronic data, including magnetic tapes, disc, (floppy or hard), and the complete hardware necessary to retrieve electronic data including CPU (Central Processing Unit), CRT (viewing screen), disk or tape drive(s), printer, software and service manuals for operation of the said computer, together with all hand written notes or printed material describing the operation of the computers. (See Exhibit A - Search Warrant No. 1, property to be seized #1). 2. Human body parts identifiable as belonging to the deceased, Dora Kent; 3. Narcotics, controlled substances and other drugs subject to regulation by the Drug Enforcement Administration." From a reivew of the contents of the search warrant, and contrary to plantiffs' allegations in the complaint, it would appear that the purported seizure of electronic E-Mail was specifically authorized by paragraph 1 of the search warrant set out above. That paragraph specifically permittted the seizure of all electronic storage devices capable of storing electronic data including magnetic tapes, discs and hardware necessary to retrieve electronic data. As previously noted, since electronic mail is a type of communication which is typed into a computer terminals and potentially then stored in that computer system, the language of the warrant clearly should be found to cover the seizure that took place in this case. Defendants have found no authority suggesting that a search warrant as specific as that found in the instant case, violates the requirements of particularly which would subject the warrant to a finding of invalidity. Under California law, it is well settled that "The requirement of particularly is designed to prevent general exploratory searches which unreasonably interfere with a person's right to privacy. . . . [T]his requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized." _Burrows v. Superior Court_, 13 Cal.3d 283, 249 (1974). As the California Supreme Court has observed in another instance, "nothing should be left to the discretion of the officer." _People v. Dumas_, 9 Cal.3d 871, 880 (1973). As noted by the Ninth Circuit Court of Appeals, while precise description of the items to be seized in accordance with a search warrant is not always possible, some specificity is required. _U.S. v. McLaughlin_, 851 F.2d 283, 285 (9th Cir. 1988). As required by the _McLaughlin_ case and the California authority previously cited, the search warrant specifically described the property to be seized and the specification imposed a meaningful restriction upon what objects would be taken by the police during the execution of the search. Thus, since it would appear that the search warrant satisfied the particularity requirement of both state and federal law, no violation of plaintiffs Fourth Amendment rights could be said to have occurred and, indeed, as noted above, no such allegation of violation of the constitutional rights is alleged. Assuming that the search warrant satisfies Fourth Amendment standards, there can be no legitimate polity reason asserted by plaintiffs which would permit this court to find that the search warrant did not comply with the specific terms of the ECPA. In sum, since the specific terms of the search warrant may be found to have authorized the seizure of plaintiffs' E-Mail, this court should find that no proper claim for relief has been stated by the plaintiffs and the complaint should be ordered dismissed. II _EVEN IF THIS COURT WERE TO CONCLUDE THAT THE SEARCH WARRANT WAS TECHNICALLY DEFICIENT STILL DEFENDANTS ARE PROTECTED FROM SUIT BY DOCTRINE OF GOOD-FAITH RELIANCE THUS, THE COMPLAINT SHOULD BE ORDERED DISMISSED ON THIS ADDITIONAL GROUND._ Even if this Court were to find that a technical violation of the ECPA had occurred due to the seizure of plaintiffs' E-Mail in the instant case, defendants nevertheless would be entitled to dismissal of the action pursuant to the provision of 18 U.S.C. section 2707(d)(1) which provides a complete defense for good-faith reliance on a facially valid court warrant or order. [The cited section refers to warrants *for* email, and plaintiffs arguement is that deffendants had no such warrant.] In the instant case, as explained in section I of this memorandum, defendants were in fact engaged in the execution of a facially valid search warrant. Thus, under the circumstances, their conduct should be found to fall within the rule of good-faith reliance. It should be noted that there are as yet no decisions interpreting the good-faith defense provided by the provisions of section 2707. However there is a significant body of case law regarding the doctrine of qualified immunity. Thus, the doctrine of qualified immunity has been recognized to shield government employees from civil right suits and is available in that context unless the officials "knew or reasonably should have know that [his or her] action . . . would violate . . . constitutional right . . . . " _Harlow v. Fitzgerald_, 457 U.S. 800, 815 (1982), emphasis omitted. In civil rights cases qualified immunity is available as a defense in three circumstances: (1) If it is unclear at the time of the challenged acts that plaintiff had a constitutionally protected interest; (2) even if plaintiff has a constitutionally protected interest, it was unclear at the time whether an exception would be permitted; and (3) even if plaintiffs's rights were clearly delineated, qualified immunity is still available if was objectively reasonable for defendant to feel that their acts did not violate plaintiff's constitutional rights. _Robision v. Via_, 821 F.2d 913, 920-921 (2d Cir. 1978); _Tomer v. Gates_, 811 f.2d 1240, 1242 (9th Cir. 1987). Further, the good-faith exception to the exclusionary rule has been found to be inapplicable only when a warrant is "so facially overbroad as to preclude reasonable reliance by the executing officers," _U.S. v. Michaelian_, 803 F.2d 1042, 1046 (9th Cir. 1986), or when the officers do not act in good faith _U.S. v. Spilotro_, 800 f.2d 959,. 968 (9th Cir. 1986) In the instant case, defendants were entitled to good-faith immunity for a number of reasons. First, as explained in the prior section of this memorandum, the search warrant was not so facially overbroad as to preclude reasonable reliance on its terms by the defendants herein. Moreover, it was not "clearly established" at the time of the events in this case that the seizure would somehow be found to be in violation of either the Forth Amendment or the specific terms of the ECPA of 1986. Defendants did not have the benefit of established precedent with respect to the doctrine of good-faith immunity as it applied to the specific terms of the federal Act. Finally, in light of the specific language in the search warrant, this court should determine that it was objectively reasonable for defendants to conclude that seizure of the E-Mail was specifically authorized. Here, there could have been at most no more than a technical violation in the execution of the search warrant and no prior precedent interpreting the specific terms of the statute. These are precisely the circumstance in the good-faith immunity should be found to shield defendants form civil liability. For this reason, too, the complaint should be dismissed. [There is certainly an interesting Catch 22 in this reasoning. The condition of having no precidents is being used as a reason to dismiss the case. If all cases are dismissed on this basis, no precedent will ever be set!] CONCLUSION For the forgoing reasons, defendants respectfully submit that this court should grant their motion to dismiss plaintiffs' action for violation of the ECPA since they have failed to plead an appropriate federal claim under this statue. In the alternative, this court should find that the named defendants herein are entitled to good-faith immunity under the statue and, thus, the complaint should be dismissed for this reason as well. Dated: March 27, 1990 [signed etc] Downloaded From P-80 International Information Systems 304-744-2253