;Date 11 Nov 92 12:30:35 To: Tomj@1:125/111 Subject: Re: ECPA suit settled (for $) Options
;Date 11 Nov 92 12:30:35
From: Uucp@1:125/555
To: Tomj@1:125/111
Subject: Re: ECPA suit settled (for $)
Options: kill-sent private
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From kumr!cup.portal.com!hkhenson
From: hkhenson@cup.portal.com
To: tomj@fidosw.fidonet.org
Date: Wed, 11 Nov 92 12:09:02 PST
Subject: Email privacy case settled
The long running Alcor/email case against the County and City of Riverside,
CA was settled out of court in April of this year. The announcement was
delayed until all parties had signed off, and the check (for $30k) had
cleared the bank :-).
The Alcor Life Extension Foundation (a non-profit cryonics organization
--alcor@cup.portal.com) ran a BBS for members and prospective members from
early 1987 through January 12, 1988. On that day, the BBS computer was
removed under a warrant to take the computer (but no mention of any
contained email) in connection with the investigation into the death of
83-year-old Dora Kent. (Mrs. Kent was placed into cryonic suspension by
Alcor in December of 1987. During and following the investigation, Alcor
staff members were publicly accused by county officials of murder, theft,
and building code violations. No charges were ever filed and the
investigation was officially closed three years later.)
In December of 1988 Keith Henson filed a civil suit to force an
investigation of the apparent violations of the Electronic Communication
Privacy Act by the FBI, but the case was dismissed by the now convicted
Judge Aguilar.
In early 1990, just before the statute of limitations ran out, Henson and
14 others (of the roughly 50 people who had email on the system) filed a
civil action against a number of officials and the County and City of
Riverside, CA under Section 2707 of the Electronic Communication Privacy
Act.
Some time after the case was filed, the Electronic Frontier Foundation came
into existence in response to law enforcement abuses involving a wide
spectrum of the online community. EFF considered this case an important
one, and helped the plaintiffs in the case by locating pro bono legal help.
While the case was being transferred, the County and City offered a
settlement which was close to the maximum damages which could have been
obtained at trial. Although no precedent was set because the case did not
go to trial, considerable legal research has been done, and one judgment
issued in response to the Defendants' Motion to Dismiss. The legal filings
and the responses they generated from the law firm representing the
County/City and officials are available by email from mnemonic@eff.org or
(with delay) from hkhenson@cup.portal.com. (They are also posted on
Portal.)
The Plaintiffs were represented by Christopher Ashworth of Garfield,
Tepper, Ashworth and Epstein in Los Angeles (408-277-1981). A summary of
the settlement agreement is attached.
SETTLEMENT AGREEMENT
This agreement is made and entered into in Riverside, California,
this _____ day of ______ by and between [long list of defendants and
plaintiffs]
I.
FACTUAL RECITALS
1. This Agreement is executed with reference to the following facts
for purpose of this Agreement only.
2. On January 12, 1998, some of the Defendants, pursuant to a search
warrant, entered into the premises of Alcor Life Extension Foundation in
Riverside, California.
3. Upon entry into the property, some of the Defendants seized various
items, including electronic media containing E-mail owned by the
plaintiffs.
4. On or about January 11, 1990, plaintiffs commenced civil action No.
SAC 90-021js in the United States District Court, Santa Ana ("the Action"),
against the defendants for injuries and damages allegedly suffered as a
result of the defendants' seizure of plaintiff's E-mail.
5 It is now the desire and intention of plaintiffs, on the one part,
and defendants on the other part, to settle, compromise, and resolve all
the differences, disagreements, and disputes, which exist and may exist,
including those which are the subject matter of, referred to, related to,
or mentioned in the Action. Pursuant to this desire, and in consideration
of the mutual promises contained herein, the parties agree as follows.
II CONSIDERATION
6. Upon the execution of this Agreement, defendants County of
Riverside shall pay to plaintiffs, by check, the total sum of Thirty
Thousand Dollars ($30,000), inclusive of attorney fees and cost.
7. [The rest of this is boilerplate, except that they wanted
confidentiality of the agreement, to which we would not agree.]
;Date 11 Nov 92 12:30:21
From: Uucp@1:125/555
To: Tomj@1:125/111
Subject: Re: ECPA suit filed against city/county
Options: kill-sent private
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From kumr!cup.portal.com!hkhenson
From: hkhenson@cup.portal.com
To: tomj@fidosw.fidonet.org
Date: Wed, 11 Nov 92 12:06:36 PST
From _The Press-Enterprise_ Saturday, Feb 24, 1990
(Posted by Alcor member Keith Henson without permission)
ALCOR FILES SUIT OVER ELECTRONIC MAIL SEIZURE
By David Bloom, The Press-Enterprise
Another legal battle has erupted between Alcor Life Extension
Foundation and the law, this time with a federal lawsuit filed by
Alcor over the seizure more than two years ago of computerized
"electronic mail" during a search of the group`s Riverside
headquarters.
Alcor members pay up to $100,000 for the privilege of have their
bodies put in cryonic suspension, frozen at temperatures hundreds of
degrees below zero, after their death. The members hope developing
medical technology will one day enable the to be revived and cured.
The group ran afoul of local law enforcement officials, however,
after the cryonic suspension of the head of Dora Kent in December
1987.
The Riverside County coroner's Office accused Alcor members of
hastening along Kent's death with a lethal dose of barbiturates in
preparation for freezing. The group has denied the accusation, saying
the provided only "care and comfort" to the 83 year-old Kent in her
last two days.
Law enforcement officers raided the Alcor headquarters on
Riverside's southwest edge in January 1988, searching for computer
equipment, software and related material, and for Kent's body parts,
and any illegal drugs.
They found the equipment, but not Kent, whose head had been
secreted away, or any illegal drugs.
The most recent lawsuit was filed last month in U.S. District court
in Los Angeles. It accuses a dozen Riverside City and County law
enforcement officials of violating the Electronic Communication
Privacy Act of 1986.
The suit says police illegally seized the electronic mail of 14
Alcor members when it seized the computer equipment. A copy of the
search warrant included as an exhibit in the suit does not mention
electronic mail.
The suit asked for at least $10,000 for each of the alcor member who
filed the suit. Most to the same members filed a claim against the
city 11 months ago, but the city allowed the claim to expire without
response after 45 days, said attorney John Porter, who is
representing the city and two policemen named in the suit.
"This lawsuit was filed in federal court," Porter said. "It
should have been filed the Twilight Zone."
The attorney for Alcor could not be reach for comment late
yesterday.
;Date 11 Nov 92 12:30:23
From: Uucp@1:125/555
To: Tomj@1:125/111
Subject: Re: ECPA suit-court filing
Options: kill-sent private
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;INTL 1:125/111 1:125/555
From kumr!cup.portal.com!hkhenson
From: hkhenson@cup.portal.com
To: tomj@fidosw.fidonet.org
Date: Wed, 11 Nov 92 12:07:06 PST
CHRISTOPHER ASHWORTH, A Member of
GARFIELD, TEPPER, ASHWORTH & EPSTEIN
1925 Century Part East, Suite 1250
Los Angeles, California 90067
Telephone: (213) 277-1981
Attorneys For Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Case NO. SA CV90-021 JSL (RwRx)
COMPLAINT FOR
DECLARATORY RELIEF
AND DAMAGES
(Electronic
Communications Privacy
Act of 1986;
18 U.S.C. Section 2701,
et seq.)
H. KEITH HENSON, HUGH L. HIXON,
JR., THOMAS K. DONALDSON, NAOMI
REYNOLDS, ROGER GREGORY, MICHAEL G.
FEDEROWITCZ, STEVEN B. HARRIS,
BRIAN WOWK, ERIC GEISLINGER,
CATH WOOF, BILLY H. SEIDEL,
ALLEN J. LOPP, LEE CORBIN
RALPH MERKEL, AND KEITH LOFTSTROM
Plaintiffs,
v.
RAYMOND CARRILLO, SCOTT HILL,
DAN CUPIDO, ALAN KUNZMAN, ROWE
WORTHINGTON, RICHARD BOGAN,
REAGAN SCHMALZ, GROVER TRASK, II,
ROBERT SPITZER, LINFORD L.
RICHARDSON, GUY PORTILLO,
individuals, and the COUNTY OF
RIVERSIDE, a subdivision of the
State of CAlifornia, And the CITY
OF RIVERSIDE, a municipal entity,
and DOES 1 through 100 inclusive,
Defendants.
Plaintiffs complain of defendants as follows:
JURISDICTIONAL ALLEGATION
1. This case arises under an Act of Congress, namely
the Electronic Communication Privacy Act of 1986; U.S.C. Section
2701, et Seq., and in particular, the civil enforcement
Provisions thereof, 18 U.S.C. Section 2707. Venue is proper in this
Court in that all of the defendants reside in this district.
COMMON ALLEGATIONS
2. Plaintiffs are all individuals residing in
various point and places in the United States. [except Brian
Wowk who resides in Canada.]
3. Defendants Carillo, Hill, Cupido, Kuntzman,
Worthington, Bogan, Schmalz, Trask, Spitzer, Hinman and Mosley
are all employees of defendant County of Riverside, and at all
times material, were acting within the course and scope of their
employment. Defendants Richardson and Portillo are all
employees of defendant City of Riverside and at all times
material, were acting within the course and scope of their
employment. Defendant County of Riverside ["county'] is a
political subdivision of the State of California. Defendant
City of Riverside ["city'] is a municipal entity located within
California.
Defendants Carillo, Hill, Cupido, Kuntzman,
Worthington, Bogan, and Schmalz are employed by defendant County
in the Office of the Riverside County Coroner. Defendants
Trask, Spitzer, Hinman and Mosley are employed by the said
county in the office of the District Attorney, Defendants
Richardson and Portillo are employed by defendant City in the
Riverside Police Department.
-------------------
4. All of the events complained of herein occurred
within two years of the date of filing of the complaint.
At all times material, Alcor Life Extension
Foundation, a non-Profit corporation with its principal place of
business in Riverside County, maintained facilities at its place
of business whose purpose was to (in part) facilitate the
sending and receipt of electronic mail ["E-mail"] via computer-
driven modems and which electronic mail facility was utilized by
the plaintiffs, and each of them. The Alcor Facility is remote in
geographical location from all plaintiffs.
5. At all times material, each plaintiff had one or
more E-mail messages abiding on electron or magnetic medial at
the Alcor facility. Prior to [actually on] January 12, 1988, defendants
procured from the Riverside Superior Court a search warrant
which authorized, in general, a search of the facilities of
Alcor. A true and correct copy of that search warrant is
attached hereto and marked Exhibit "A". The search warrant does
not purport to reach, nor was it intended to reach, any of the
E-mail of plaintiffs.
6. On January 12, 1988, defendant entered upon the
Alcor premisses and removed many things therefrom including the
electronic media containing plaintiffs' E-mail.
7. Contemporaneously with the seizure of the
electronic media containing plaintiffs' E-mail, defendants were
explicitly informed that they were seizing plaintiffs' E-mail
which was not described either generally or specifically in the
warrant hereinabove referred to.
--------------
8. No notice was given to any plaintiff by any
defendant of the impending seizure of their E-mail.
9. In the process of procuring the warrant, neither
the defendants nor anyone else made any showing that there
was reason to believe that the contents of any of plaintiffs' E-
mail was relevant to any law enforcement inquiry.
10. Subsequent to the execution of the warrant on
January 12, 1988, no notice was given to any plaintiff by any
government entity, including the defendants, nor any
defendant herein, at any time, regarding the defendants
acquisition and retention of plaintiffs' E-mail.
11. The court issuing the warrant in respect of the
Alcor facility did not, prior to the issuance of the warrant nor
at any other time, determine that notice to plaintiffs
compromised any legitimate investigation within the meaning of 18
U.S.C. section 2705(a)(2).
12. Not withstanding that defendant and each of them
were informed that they had taken, along with materials
describe in the warrant, E-mall belonging to plaintiffs, said
defendants 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 the
said E-mail. Defendants' wrongful access to and retention of
plaintiffs' E-mail was intentional within the meaning of 18
U.S.C. section 2707.
--------------
13. Proximately caused by the unprivileged actions of
the defendants hereinbefore described, each plaintiff has
suffered damage in an amount to be proved at trial, but in no
event less than $10,000 each.
WHEREFORE plaintiffs pray:
1. For damages according to proof;
2. For cost of suit;
3. For Attorneys' fees pursuant to 18 U.S.C.
section 2707(b)(3); and
4. For such other and further relief as is required
in the circumstances.
Date: January 11, 1990
GARFIELD, TEPPER, ASHWORTH, AND EPSTEIN
A Professional Corporation
(signed)
CHRISTOPHER ASHWORTH
Attorneys for Plaintiffs
--------------
Exhibit "A"
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA
SEARCH WARRANT
To any Sheriff, Police Officer, Marshal or Peace Officer
in the County of Riverside.
Proof, by sworn statement, having been made this day
to me by Alan Kunzman and it appearing that there is
probable cause to believe that at the place and on the
persons and in the vehicle(s) set forth herein there
is now being concealed property which is:
____ stolen or embezzled property
__x__ property and things used to commit a felony
__x__ property possessed (or being concealed by another)
with intent to commit a public offense
__x__ property tending to show a felony was committed;
YOU ARE THEREFORE COMMANDED TO SEARCH : the
premises located at
[description of Alcor address at 12327 Doherty St.]
including all rooms attics, basements, storage areas, and
other parts therein, garages, grounds and outbuilding and
appurtenances to said premises; vehicles(s) described as
follows:
(not applicable)
and the persons of (not applicable)
for the following property:
1. All electronic storage devices, capable of storing,
electronic data regarding the above records,
including magnetic tapes, disc, (floppy or hard),
and the complete hardware necessary to retrieve
electronic data including CPU (Central Processing
Unit), CRT (viewing screen, disc or tape drives(s),
printer, software and service manual for operation
of the said computer, together with all handwritten
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 or belonging to
the deceased, Dora Kent.
3. Narcotics, controlled substances and other
drugs subject to regulation by the Drug
Enforcement Administration.
article of personal property tending to establish the identity
of person in control of premise, vehicle, storage areas,
and containers being searched, including utility company
receipts, rent receipts, address envelopes and keys and to
SEIZE it if found and bring it forthwith before me or
this court at the courthouse of this court.
Good cause being shown this warrant my be served at any
time of the day or night as approve by my initials_________
Time of issuance _______ Time of execution __1600__
Given under my hand and dated this 12th day of January 1988
Thomas E. Hollenhorst Judge of the Superior Court
-------------
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
H. KEITH HENSON, see attachment "A"
PLAINTIFF(S)
vs.
RAYMOND CARRILLO, see attachment "A"
DEFENDANTS(S)
CASE NUMBER
SA CV- 90-021 JSL Rw Rx
SUMMONS
-----------------------------------------------
TO THE ABOVE NAMED DEFENDANT(S), your are hereby summoned and required to
file with this court and serv upon
Christopher Ashworth, Esq.
GARFIELD, TEPPER, ASHWORTH & EPSTEIN
A Professional Corporation
Plaintiff's attorney, whose address is:
1925 Century Park East, Suite 1250
Los Angeles, California 90067
(213) 277-1981
an answer to the complaint which is herewith serve upon you
within __20__ days after service of this summons upon you, exclusive
of the day of service. If you fail to do so, judgment by default
will be taken against you for the relief demanded in the complaint.
Date Jan. 11, 1990
CLERK, U.S. DISTRICT COURT
By MARIA CORTEZ
Deputy Clerk
(SEAL OF THE COURT)
;Date 11 Nov 92 12:30:25
From: Uucp@1:125/555
To: Tomj@1:125/111
Subject: Re: ECPA suit, motion to dismiss
Options: kill-sent private
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From kumr!cup.portal.com!hkhenson
From: hkhenson@cup.portal.com
To: tomj@fidosw.fidonet.org
Date: Wed, 11 Nov 92 12:07:37 PST
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]
;Date 11 Nov 92 12:30:30
From: Uucp@1:125/555
To: Tomj@1:125/111
Subject: Re: reply to motion to dismiss
Options: kill-sent private
;Status: (read 6 times)
;INTL 1:125/111 1:125/555
From kumr!cup.portal.com!hkhenson
From: hkhenson@cup.portal.com
To: tomj@fidosw.fidonet.org
Date: Wed, 11 Nov 92 12:08:00 PST
This is what our lawyer said in response to their motion. Comments
in [] ---Keith Henson
CHRISTOPHER ASHWORTH, A Member of
GARFIELD, TEPPER, ASHWORTH & EPSTEIN
1925 Century Part East, Suite 1250
Los Angeles, California 90067
Telephone: (213) 277-1981
Attorneys For Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Case NO. SA CV90-021 JSL (RwRx)
H. KEITH HENSON, et al.,
Plaintiffs,
v.
RAYMOND CARRILLO, et al.,
Defendants.
Plaintiffs oppose the motion of defendants to dismiss in the
following premises:
1. _Introduction_
Defendants motion is premised upon two discrete but interrelated
concepts: first, the defendants assert that the mere existence of a
search warrant that purports to authorize the seizure of " all electronic
storage devices [etc.] . . . " is sufficient to avoid liability under the
Electronic Communication Privacy Act (hereinafter "Act"). Second, the
defendants argue that even it there is a "technical" violation of the
Act, then the activities of the defendants are saved by their "good faith
reliance" upon the warrant.
As will be pointed out in two brief succeeding sections, both of
these premises are erroneous. In general, the " warrant issued" defense
fails because the defendants have brought forth no evidence as required
by 18 U.S.C. Section 2703(d) to defensively demonstrate the propriety of
the issuance of the warrant in the first place under the limitation
imposed by the Act. With regard to the "good faith" argument, the short
answer is that the warrant is defective upon its face.
2. _Non-compliance With The Act_
18 U.S.C. Section 2703(d) declares in material part as follows:
"(d) Requirements for court order. A court order for
disclosure . . . may be issued by any court that is a court of
competent jurisdiction . . . and shall issue only if the governmental
entity shows that there is reason to believe the contents of a wire or
electronic communication . . . are relevant to a legitimate law
enforcement inquiry . . . ."
In order to claim the protection of this section, the "governmental
entity" would have to demonstrate to _this_ court that it had supplied
the issuing court with evidentiary materials to permit the issuing court
to find "that there is reason to believe that the contents of a wire or
electronic communication . . . are relevant to a legitimate law
enforcement inquiry." The defendants here have brought forth no evidence
to show that the issuing court was favored with any evidentiary materials
which would permit it to draw the statutorily required conclusion set
forth in Section 2703(d).
The plaintiffs do not wish to leave the court dangling in suspense
wondering there was ever any evidentiary materials supplied to the
issuing court. While it is clear that it is not the plaintiffs' burden
to do so, the evidentiary materials supplied to the issuing court in
connection with the issuance of the warrant is attached hereto as Exhibit
"A". Plaintiffs' instincts in this matter are not entirely charitable.
The evidentiary material are required for the next section which scotches
the defendants "good faith" theory.
3. _The Defendants Have Failed To Make A "Good Faith" Showing._
18 U.S.C. Section 2707(d) declares as follows:
"A good faith reliance on -- (1) a court warrant or order . . .
is a complete defense to any civil or criminal action brought under this
chapter . . . ."
Defendants suggest to us that the measurement of the "good faith" of the
officers and others executing the warrant should be interpreted under the
qualified immunity doctrine. That level of sophistication need not be
reached in this case. As will be succinctly demonstrated in the
following paragraphs, the warrant was so deficient on its face as to not
give an executing officer _any_ possibility of believing that he was
authorize to seize electronic communication of any kind.
As the defendant correctly noted, the ordering paragraph of the
search warrant contained, in paragraph 1 thereof, the following property
description:
"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).
A perusal of Exhibit "A" and its translation attached as Exhibit "B" will
demonstrate to the satisfaction of anyone who can read that the issuing
court was not favored with a single scrap of testimony to the effect that
(a) the premises to be searched contained any computer or electronic
media materials and (b) that there was any reason to believe the contents
of a wire or electronic communication were relevant to a legitimate law
enforcement inquiry as required by Section 2703(d).
It is well settled that a search warrant issuing from a court is
inseparable from and must be read in connection with the underlying
affidavits which are perforce attached to it. See _Unites States vs.
Stanert, 762 f.2d 775, 778 (9th Cir. 1858). "A search warrant, to be
valid, must be supported by an affidavit establishing probable cause. In
reviewing the validity of a search warrant, a court is limited to the
information contained within the four corners of the underlying
affidavit." In our case, any executing officer reading the warrant and
attached affidavits would discover that there was no evidence presented
to the court to justify taking any electronic devices. Moreover, all
persons executing search warrant are charged with the knowledge that the
things to be seized must be described with reasonable particularly.
Here, the warrant authorized the seizure of electronic media that was
"capable of storing" certain kinds of data! The warrant did not even
require that the relevant data be in the electronic media. This is
analogous to authorizing the seizure of "all books shelves capable of
containing records relevant to the commission of a crime."
[Or all mail in a post office]
Warrants that merely describe broad classes of documents or other things
without specific descriptions of items to be seized do not provide
objective
standards by which a executing officer could determine what
could be seized and was itself sufficient to debunk any "good faith'
claim.
The Ninth Circuit has recently held that a search warrant which was
comparably overbroad to the one under consideration here (a) obliterated
the legality of the search and (b) completely scotched the possibility
that he officers had acted in good faith. See _United States vs.
Stubbs_, 873 F.2d 210 (9th Cir. 1989). The _Stubbs_ court noted that
where the description of the things to be seized was so general "the
executing officer simply could not reasonably rely on [this] facially
deficient warrant."
With or without the attached affidavits, the search warrant as issued
declared open season on all of the books and record of whoever might have
been found at 12327 Doherty Street in Riverside. Aside from some truly
unusual cases, the courts are uniform in condemning these types of
unlimited searches. See _Stubbs_, supra; _Barrows vs. Superior Court of
San Bernadino_, 13 Cal. App. 3d 238, 118 Cal. Rptr. 166, 173 (1974) and
_Aday vs. Superior Court of Alameda_, 55 Cal. App. 2d 789, 13 Cal. Rptr,.
415 (1961).
[footnote--Occasionally, all of the books and records of an entity are
subject to seizure where there is evidence before the issuing court that
the entity is engaged in comprehensive wrongdoing with relatively few
opportunities for noncriminal activities. See, e.g., _United States vs.
Accardo_, 479 f.2d 1477 (11th Cir. 1985). Even in the case just cited,
the circuit court remanded the case back to the district court for
further determination of whether the executing officer had indeed acted
in good faith.]
Whether judged in terms of its underlying affidavits (which contain
not one syllable regarding electronic storage devices) or upon the face
of the ordering paragraph (which authorizes the seizure of everything
electronic that was not nailed down) no executing officer with a
rudimentary training in law enforcement could have believe in good faith
that the warrant he was executing was valid.
4. _Conclusion_
Defendants' motion fails on both grounds urged. First, the
defendants failed to show that the conditions precedent to the issuance
of the warrant in the first instance required by Section 2703(d) were
complied with. Secondly, the defendants have failed to demonstrate --
particularly as a matter of law -- that the seizure of the electronic
storage devices at issue here were the result of good faith. The motion
should be denied and the defendants ordered to answer.
DATED : April 11, 1990
CHRISTOPHER ASHWORTH, a Member of
GARFIELD, TEPPER, ASHWORTH, & EPSTEIN
A Professional Corporation
{signed}
CHRISTOPHER ASHWORTH
Attorneys for Plaintiffs
[Actually, there was an affidavit in support of the search warrant
used to take the computers, but because it was filed much later, both
lawyers seem to have missed it. The relevant paragraph reads:
"During the service of this second search warrant, it was discovered
that there were several personal/business computer located on the
premises. It is you affiant's belief that these computers were used in
the course of the company's business affairs to record data and
information pertaining to existing preservations being maintained by
Alcor Foundation, as well as information relating to the Dora Kent death
and subsequent preservation."
It is possible to wonder why it took them well into the second search
of ALcor to notice seven computers.]
Attachment "A"
Affiant's Declaration
I, Allen E. Kunzman, presently employed as a edputy coroner
investigator with Riverside County was assigned to assists deputy coroner
Rick Bogan who was investigating the unreported death of Dora Kent.
Deputy Bogan was advised of Dora Kent's death on December 15, 1987, at
1650 hours, by a Joe Klockgether, a representative of Renaker-Klockgether
Mortuary. Mr. Klockgether had attempted to file a death certificate with
the Riverside County Health Department, and due to information that had
been listed on the death certificate, required the death of Dora Kent to
be reported to the Riverside County coroner's office. The death had
reported occurred at 0027 hours on December 11, 1987 at 12327 Doherty
Street, City and County of Riverside, a place of business identified as
Alcor Life Extension Foundation. A check of our records, in fat, confirm
that the death had not been reported. On December 16, 1987, myself and
deputy Bogan made contact with Michael G. Federowic\ aka Michael Darwyn,
President of Alcor, and a Jerry Leaf, Vice President of Alcor. Both
being present upon our arrival at the 12327 Doherty Street address.
Michael Federowicz and Jerry Leaf explained that Dora Kent had been
brought to the 12327 Doherty Street address on December 9, 1987, by
Michael Federowicz and Saul Kent, Dora Kent`s son. That she remained at
the 12327 Doherty Street address and that she expired at 0027 hours on
December 11, 1987. Federowicz and Leaf both stated, "they, nor any
other representative from the Alcor Life Extension Foundation reported
Dora Kent's death to the Riverside County coroner's office." While at
the 12327 Doherty Street address, Jerry Leaf and Michael Federowicz
reported to myself and deputy Bogan that they are currently storing the
heads of seven other decedents and one entire body at the 12327 Doherty
Street address. This body and seven heads are being stored in a frozen
state in liquid nitrogen. Federowicz and Leaf were asked for any
licenses and permits which would authorize them to maintain and store the
body and body parts that they had reported to us as being at the 12327
Doherty Street address. Federowicz nor Leaf could produce any licenses
or permits for the storage of the aforementioned body or heads. Contact
was subsequently made with Don Cavallo of the Riverside County Health
Department's Registrar`s office and determine if any permits had been
issued to the Alcor Life Extension Foundation for the purpose of storing
bodies and/or body parts. As of January 6, 1987, per Daon Cavallo of the
Riverside County Health Department, the County Registrar's office has
never issued any permits to Alcor for storing bodies or body parts.
Therefore, I request the issuance of a warrant to obtain evidence to show
that violations of Government Code Section 27491 and Health and Safety
Code Section 10377 have occurred and are currently occurring at the 12327
Doherty Street location.
;Date 11 Nov 92 12:30:33
From: Uucp@1:125/555
To: Tomj@1:125/111
Subject: Re: reply to reply and judges ruling
Options: kill-sent private
;Status: (read 6 times)
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From kumr!cup.portal.com!hkhenson
From: hkhenson@cup.portal.com
To: tomj@fidosw.fidonet.org
Date: Wed, 11 Nov 92 12:08:26 PST
This is the final round on the motion before the judge ruled. The ruling
is attached. ---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)
REPLY TO OPPOSITION TO MOTION
TO DISMISS COMPLAINT FOR
DECLARATORY RELIEF AND
DAMAGES
Date: May 14, 1990
Time: 1:00 p.m.
Courtroom: No. 2
Trial Date: None set
MEMORANDUM OF POINTS AND AUTHORITIES
Contrary to plaintiff's assertions, the complaint must be dismissed as
to all of the named defendants because plaintiffs have failed to state a
claim for relief pursuant to the Electronic Communications Privacy Act
and, in any event, defendants are shielded from liability by the
good-faith immunity provided by the statute.
This court will recall that in their motion to dismiss the complaint,
defendants asserted that from a review of the search warrant attached
thereto (Attachment A to complaint), they did not violate or exceed the
specific terms of the search warrant order obtained by them prior to its
execution at Alcor's premises and even if it were otherwise, the named
defendants were entitled to dismissal on the basis of their good-faith
reliance on the facially valid Riverside County Superior Court search
warrant.
In seeking to oppose defendants' motion to dismiss, plaintiffs, rather
than focusing on the specific allegations of their complaint and the
specific statutory and case authority supporting their action, attempt to
establish the invalidity of defendants' conduct and their lack of good
faith in executing a search warrant, relying instead on materials not
incorporated by reference in their complaint or alleged therein. It
would appear that in order to oppose the instant motion to dismiss,
plaintiffs quite improperly attempt to convert defendants' motion to
dismiss predicataed on Federal Rules of Civil Procedure, Rule 12(b)(6),
to a motion for summary judgment pursuant to Federal Rules of Civil
Procedure, Rule 56. This they may not do.
Plaintiffs improperly attempt to shift their focus in opposition to
the otion to dismiss by arguing that defendants had a purported duty to
supply this court with evidentiary materials consisting of the affidavit
in support of search warrant and then proceed to contend that defendants
would have to demonstrate to this court that they had supplied the court
issuing the warrant with tehse materials, thus permitting that court to
find "that there is reason to believe that the contents of a wire or
electronic communication...are relevant to a legitimate law enforcement
inquiry." Opposition, pp. 2-3. Having made this baldface assertion,
plaintiffs then proceed to improperly put before this court the purported
affidavit which they claim was utilized to obtain the search warrant in
this case. However, plaintiffs have cited no authority and, indeed,
defendants are aware of no proper authority which would permit plaintiffs
to bring before this court a document purporting to be the affidavit n
support of search warrant, since, again, plaintiffs are not faced with
opposing a motion for summary judgment, but rather a motion to dismiss
complaint based on the lack of supporting allegations in their complaint
to proceed to trial.
Once this court makes a determination that the materials placed in
plaintiffs' opposition have no proper place in that document, we are left
with an opposition which is barren of any relevant authority to establish
that defendants in fact violated the specific terms of said warrant at
the time of its execution. Moreover, plaintiffs have made no proper
argument to establish that defendants failed to act in good faith in
executing what defendants contend was a facially valid warrant.
While defendants do not quarrel wilth the concept that a search
warrant issuing from a court is inseparable from and must be read in
connection with the underlying affidavits which are attached to it (see
United States v. Stanert, 762 f.2d 775,778 (9th Cir. 1985)), in the
instant case the specific terms of the search warrant affidavit having
not been alleged or incorporated by reference in plaintiffs' compalint,
cannot now be utilized by plaintiffs to suggest that the search warrant
in this case was overbroad, thus somehow negating defendants' assertion
of good-faith immunity. Contrary to plaintiffs' assertion, the search
warrant in the instant case did not declare open season on all books and
records at the property where the search and seizure occurred. Neither
the allegations of the plaintiffs' complaint, nor the search warrant
attached thereto, established that defendants were involved in a search
of unlimited scope.
In sum, based on the arguments contained in defendants' trial motion
to dismiss and this reply, this court should find that the search
involved in the instant case violated neither Fourth Amendment
requirements or the specific terms of the Electronic Communications
Privacy Act or, in the alternative, that the defendants were, in fact,
acting in good faith at the time of the search and seizure at the Alcor
premises.
CONCLUSION
For all of the foregoing reasons, defendants respectfully submit that
this court should grant their motion to dismiss plaintiffs' action for
violation of the Electronic Communications Privacy Act since it is now
obvious that they have failed to plead an appropriate federal claim under
this statute. Rather, plaintiffs' last-minute attempt to shift their
position to establish illegality by virtue of materials never put before
the court properly by way of allegation in the complaint and/or by way of
an incorporation by reference, must be summarily rejected. Since
plaintiffs do not seek leave to amend to attempt to state a proper cause
of action under the federal statute, this court should appropriately
enter a dismissal.
[signed/boilerplate]
UNITED STATES DISCTRICT COURT
MOTION TO DISMISS
H. KEITH HENSON, et al.,
Plaintiffs,
vs.
Raymond Carrillo, et al.,
Defendants.
SA CV 90-021 JSL
ORDER DENYING DEFENDANTS'
MOTION TO DISMISS
The Motion of defendants to dismiss plaintiffs' complaint for
came on for hearing regularly on May 14, 1990.
Defendants moved to dismiss on the grounds that the complaint
failed to state a claim pursuant to Federal Rule of Civil Procedure
12(b)6. Defendants asserted that, as a matter of law, no violation of
the Electronic Communication Privacy Act of 1986, 18 U.S.C section 2701,
et seq. occurred, or, alternately, that defendants are entitled to
dismissal due to their good faith reliance on a facially valid search
warrant.
Having reviewed the papers filed in connection with this matter,
having heard oral argument, and being fully apprised of the relevant
facts and law,
IT IS HEREBY ORDERED that the Motion of defendants to dismiss the
complaint is DENIED. Said denial shall be without prejudice should
defendants wish to raise these same issues later in these proceeding.
IT IS SO ORDERED.
DATED: May 18, 1990
[signed]
J. Spencer Letts
United States District Judge
E-Mail Fredric L. Rice / The Skeptic Tank