United States District Court, District of Columbia
IN THE MATTER OF THE SEARCH OF ODYS LOOX PLUS TABLET, SERIAL NUMBER 4707213703415, IN CUSTODY OF UNITED STATES POSTAL INSPECTION SERVICE, 1400 NEW YORK AVE NW, WASHINGTON, DC IN THE MATTER OF THE SEARCH OF A FUJIFILM CAMERA FINEPIX CONTAINING A 16 GB DISC, SERIAL NUMBER 2UG62662, IN CUSTODY OF UNITED STATES POSTAL INSPECTION SERVICE, 1400 NEW YORK AVE NW, WASHINGTON, DC IN THE MATTER OF THE SEARCH OF AN LG CELL PHONE, SERIAL NUMBER 107KPED087260, IN CUSTODY OF UNITED STATES POSTAL INSPECTION SERVICE, 1400 NEW YORK AVE NW, WASHINGTON, DC IN THE MATTER OF THE SEARCH OF SONY LAPTOP COMPUTER, SERIAL NUMBER 275558235000498 IN CUSTODY OF UNITED STATES POSTAL INSPECTION SERVICE, 1400 NEW YORK AVE NW, WASHINGTON, DC
MEMORANDUM OPINION AND ORDER
JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are four Applications for search and seizure warrants pursuant to Rule 41 of the Federal Rules of Criminal Procedure for four electronic devices. See Affidavit In Support of an Application for a Search Warrant at 29 (hereinafter the “Affidavit”). For the first time, the government’s Application includes an “Attachment C (Search Protocol), ” which purports to address concerns the Court raised in In the Matter of the Search of Black iPhone 4, S/N Not Available, Mag. Case No. 14-235, 2014 WL 1045812 (D.D.C. Mar. 11, 2014) (Facciola, M.J.) (hereinafter In re Search of Black iPhone). Attachment C, however, fails to adequately detail the proposed search protocol and thus fails to adequately address the Court’s concerns. For the reasons stated below, the government’s Applications for search and seizure warrants will be denied.
Each of the four Applications is based on the same Affidavit, and each pertains to an investigation of the distribution and possession of child pornography, in violation of 18 U.S.C. §§ 2251, 2252, and 2252A, by a German national who was arrested while in New York City. According to the Affidavit, the owner of the devices at issue in the Application operated a child pornography web forum. Affidavit at 19. Upon his arrest—and following a search of his hotel room—the government seized: 1) a Sony laptop; 2) a Fujifilm digital camera; 3) an LG cell phone; 4) an ODYS tablet; and 5) a sealed letter. Id. at 30-31.
Using a standard format, the Application contains an “Attachment A” that describes the devices to be searched and an “Attachment B, ” which lists “Items to Be Seized.” Affidavit at 32. Specifically, Attachment B says:
ATTACHMENT B – ITEMS TO BE SEIZED
The following items to be seized constitute contraband, fruits, and evidence of violations of Title 18, United States Code, Sections 2251, 2252 and 2252A found on the property described in Attachment A or relate to the identity of an individual identified as “Athemis, ” the lead administrator of an Internet bulletin board dedicated, in part, to the trading of images of child pornography:
a. visual depictions of minors engaged in sexually explicit conduct;
b. evidence of or pertaining to the production, advertising, promotion, transportation, accessing with intent to view, and possession of such visual depictions of minors engaged in sexually explicit conduct, including child erotica, in or affecting interstate or foreign commerce;
c. Evidence of user attribution showing who had dominion, ownership, custody, or control of the digital media device corresponding to any evidence described in “a” or “b.”
d. Information, correspondence, records, documents or other materials constituting evidence of or pertaining to items “a”, “b” or “c” above, including, but not limited to (and to the extent applicable to the Fujifilm Camera FinePix S4400, the LG Cell Phone, and the sealed letter):
i. correspondence or communications, such as electronic mail, chat logs, or other written communication;
ii. Internet usage records, user names, logins, passwords, e-mail addresses and identities assumed for the purposes of communication on the Internet, billing, account, and subscriber records, membership in online groups, clubs or services, connections to online or remote computer storage;
iii. diaries, calendars, address books, names, and lists of names and addresses of individuals who may have been contacted by computer and internet websites; and
iv. shared images, “contacts’ lists, ” and image “thumbnails.”
All of the items listed in “a” through “d” above include in whatever form and by whatever means they may have been created or stored on the a Sony laptop computer, with serial number 275558235000498, a Fujifilm Camera FinePix S4400 containing a 16 GB disc, with a serial number 2UG62662, a LG Cell Phone, with a serial number 107KPED087260, and a ...