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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]
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