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Sample Motion to Suppress – Cal E.C.P.A.
Jeffrey J. Douglas
FALA Summer 2019
1717 4th Street, 3rd Fl.
Santa Monica, CA 90401
(310) 576-3411
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- 1 - DEFENDANT’S MOTION TO SUPPRESS EVIDENCE [Penal Code §§
1538.5 and 1546.4]
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................................ 2
TABLE OF AUTHORITIES .......................................................................................................... 3
NOTICE OF MOTION ................................................................................................................... 5
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 7
I. INTRODUCTION ......................................................................................................... 7
II. STATEMENT OF FACTS ............................................................................................ 8
A. CalECPA Violations ............................................................................................... 8
B. Violations Beyond CalECPA ................................................................................ 17
C. Timeline of Events ................................................................................................ 18
III. UNLAWFUL SEARCHES AND SEIZURES REQUIRE SUPPRESSION OF THE ELECTRONIC COMMUNICATIONS INFORMATION AND THE TAINTED FRUITS ..................................................... 21
A. Violations of CalECPA ........................................................................................ 21
B. Suppression of Evidence Under CalECPA ........................................................... 28
C. Unauthorized Retention of the Electronic Communication Information From January 1, 2016, Through August 3, 2018 Requires Suppression ............................................................................................ 29
CONCLUSION ............................................................................................................................. 30
PROOF OF SERVICE .................................................................................................................. 31
EXHIBITS A – W are lodged herewith on a disk.
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- 2 - DEFENDANT’S MOTION TO SUPPRESS EVIDENCE [Penal Code §§
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TABLE OF AUTHORITIES
Page(s)
CASES
Alderman v. United States, (1969) 394 U.S. 165 .............................................................................................. 12, 17, 27
Nardone v. United States, (1939) 308 U.S. 338 .............................................................................................. 12, 17, 27
Oziel v. Superior Court, (1990) 223 Cal.App.3rd 1284 ..................................................................................... 29, 30
People v. Jackson, (2008) 129 Cal.App.4th 129 .............................................................................................. 25
People v. Superior Court (Keithley), (1975) 13 Cal.3rd 406 ................................................................................................. 12, 17
People v. Superior Court (Loar), (1972) 28 Cal.App.3rd 600 ............................................................................................... 29
People v. Williams, (1988) 405 Cal.3rd 1268 ................................................................................................... 27
Saunders v. Superior Court, (2017) 12 Cap.App.5th Supp. 1 ......................................................................................... 30
Segura v. United States, (1984) 468 U.S. 796 .......................................................................................................... 28
United States v. Mitchell, (11th Cir. 2009) 565 F.3rd 1347 ................................................................................. 28, 29
United States v. Place, 408 U.S. 104 (1972) .......................................................................................................... 28
United States v. Song Ja Cha,
(9th Cir. 2010) 597 F.3rd 995 ........................................................................................... 28
Wong Sun v. United States, (1963) 371 U.S. 471 .......................................................................................................... 27
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- 3 - DEFENDANT’S MOTION TO SUPPRESS EVIDENCE [Penal Code §§
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TABLE OF AUTHORITIES, Cont’d.
CONSTITUTIONAL PROVISIONS
United States Constitution, Fourth Amendment ......................................... 9, 10, 16, 24, 27, 28, 29
United States Constitution, Fourteenth Amendment ............................................................. 5, 9, 16
California Constitution Article I, § 28, subd. (f) ................................................................. 9, 25, 30
STATUTES
Insurance Code Section 11760, subd. (a) ........................................................................................ 8
Penal Code section 550, subd., (b), subs. (3) .................................................................................. 8
Penal Code section 1538.5 ..................................................................................................... passim
Penal Code sections 1546 – 1546.4 ........................................................................................ passim
OTHER SOURCES
Legislative Counsel’s Digest (2), 2015 Cal. Legis. Serv. Ch. 651 (S.B. 178) ................................ 9
Caskey, California Search and Seizure (2018) ............................................................. 9, 24, 25, 26
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- 4 - DEFENDANT’S MOTION TO SUPPRESS EVIDENCE [Penal Code §§
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PLEASE TAKE NOTICE that at the above-noted time and place, Defendant, through
counsel, moves to suppress all fruits of illegal searches and seizures of computers, pursuant to
Penal Code section 1538.5 and CalECPA, codified at Penal Code sections 1546 through 1546.4.
There are three grounds for suppression.
• One, documented admissions of law enforcement (filed herewith as exhibits)
acknowledge unlawful searches after the effective date of CalECPA (January 1, 2016).
Further, there are documented law enforcement violations of other CalECPA mandates,
including notice, specificity, scope of search and segregating and sealing certain seized
materials.
• Two, the retention of electronic communications seized from computers between
January 1, 2016 through August 3, 2018 without judicial authorization violates the
Fourth and Fourteenth Amendments.
• Three, after the execution of the September, 2015 warrant, the People’s agents illegally
distributed seized items in the constructive custody of this Court, in violation of Penal
Code section 1536, and established state law.
For items searched and seized illegally under CalECPA, pursuant to Penal Code section
1546.4, subd. (c), Defendant hereby requests both the suppression from evidence and destruction
of all such evidence and copies thereof. To the extent that the People contest the evidence of the
documentary admissions filed as exhibits herewith, and dispute that the violations of CalECPA
occurred, a factual hearing is required to establish those violations.
There were systematic violations of Penal Code section 1536, including the illegal
distribution of seized records to the insurance companies named in the Complaint without the
requisite judicial authorization. Such evidence must be suppressed, and a hearing held to
determine the scope of the taint of illegally distributed evidence which the People may attempt to
introduce at the preliminary examination.
This motion to suppress and destroy is based on the accompanying Memorandum of Points
and Authorities, all court records and files, and such argument, authorities and evidence as may be
presented to the Court at or before the hearing on this matter. Filed in conjunction herewith is a
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- 5 - DEFENDANT’S MOTION TO SUPPRESS EVIDENCE [Penal Code §§
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companion motion to quash and traverse Search Warrant RI080320183, issued on August 3, 2018,
and Search Warrant RI0426201612, issued on April 26, 2016.
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
On September 23, 2015, the People executed a search warrant authorized by the Court at
three locations, including the company owned by Defendant and her husband, Manufacturer, the
company of co-defendant Co-defendant, __________ and _____, a medical provider for
Manufacturer employees.1 A copy of that search warrant, signed September 16, 2015, is filed
herewith as Exhibit A. Over twenty computers and digital devices were seized at Manufacturer and
CO-D CO. The warrant also authorized the seizure of medical records of Manufacturer employees
from COMP, and Manufacturer financial records from Wells Fargo Bank (WFB) and Paychex,
Inc.
On March 21, 2017, Felony Complaint No. __ was filed against Defendant, the co-owner of
Manufacturer, Co-defendant, the owner of CO-D CO, and , an employee of CO-D CO.
In July, 2018, the defense learned that only incomplete copies of seized electronic evidence
had been provided to the defense. The events which subsequently transpired showed the likely
reason. As shown by the documented admissions of the involved law enforcement personnel,
which were not disclosed to the defense until October 25, 2018, there were pervasive
violations of statutory and constitutional law involved in the searches and seizure of
computers purportedly authorized by warrant, including, but not limited to violations of the
California Electronic Communications Privacy Act (CalECPA) (codified at Penal Code
section 1546, et seq.), the January 1, 2016 law which was in effect at the time they were
searched and which governed their search.
Consistent with applicable law, the defense seeks suppression from evidence at the
preliminary examination, and thereafter, of all of the materials obtained through the violative
searches, and evidence derived therefrom, specifically searches and seizures from Manufacturer,
CO-D CO, COMP, and potentially, Paychex and Wells Fargo Bank. Pursuant to Penal Code
1 Subsequently, the warrant was executed at Paychex, the company that processes
Manufacturer’s payroll, and Manufacturer’s bank, Wells Fargo Bank.
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section 1546.4 (c), the defense seeks the destruction of those seized items and all copies made and
distributed.
Because the violations of statutory and constitutional law occurred separately from the
facts allegedly supporting the charged violations of law (Penal Code section 550, subd. (b), subs.
(3) and Insurance Code section 11760, subd. (a)), the hearing on this motion must precede the
evidentiary portion of the preliminary examination wherein the prosecution attempts to establish
probable cause.
II.
STATEMENT OF FACTS
A. CalECPA Violations
On January 1, 2016, a new law came into effect which was a "complete game changer,"
according to a prosecution forensic expert intimately involved in the searches of seized
Manufacturer and CO-D CO computers in this case. (See Exhibit B (March 28, 2016 email from
Ian Beatty, Sergeant, Computer Forensic Team, California Department of Insurance (CDI), to CDI
Senior Investigator Susan, et al).) The law, the California Electronic Communications Privacy Act
(CalECPA) (Penal Code sections 1546 through 1546.4) applied to searches subsequent to its
effective date, even where computers had been seized in 2015.
Penal Code section 1546.1, subd. (d) reads as follows:
(d) Any warrant for electronic information shall comply with the following:
(1) The warrant shall describe with particularity the information to be seized by
specifying, as appropriate and reasonable, the time periods covered, the target
individuals or accounts, the applications or services covered, and the types of
information sought, provided, however, that in the case of a warrant described in
paragraph (1) of subdivision (c), the court may determine that it is not appropriate to
specify time periods because of the specific circumstances of the investigation,
including, but not limited to, the nature of the device to be searched.
(2) The warrant shall require that any information obtained through the execution of the
warrant that is unrelated to the objective of the warrant shall be sealed and shall not be
subject to further review, use, or disclosure except pursuant to a court order or to
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comply with discovery as required by Sections 1054.1 and 1054.7. A court shall issue
such an order upon a finding that there is probable cause to believe that the information
is relevant to an active investigation, or review, use, or disclosure is required by state or
federal law.
(3) The warrant shall comply with all other provisions of California and federal law,
including any provisions prohibiting, limiting, or imposing additional requirements on
the use of search warrants. If directed to a service provider, the warrant shall be
accompanied by an order requiring the service provider to verify the authenticity of
electronic information that it produces by providing an affidavit that complies with the
requirements set forth in Section 1561 of the Evidence Code. Admission of that
information into evidence shall be subject to Section 1562 of the Evidence Code.
In particularly relevant part, the new law required a heightened level of detail in the search
warrant affidavit and order, and measures intended to protect against the type of overly-intrusive
search that occurred in this case, such as describing with particularity the information to be seized
by specifying the time periods covered and target individuals, and segregating and sealing
unrelated information (Penal Code § 1546.1(d)(1), supra). One example of the change in law is
that CalECPA mandates that all seized electronic material not within the scope of the warrant be
segregated. (Penal Code § 1546.1(d)(2), supra.) It also greatly expands the concept of standing
and suppression as a remedy, essentially giving a defendant standing to challenge a search and
seek suppression of the electronic materials of another person or entity. See Penal Code § 1546.4
(“any person” may move to suppress evidence obtained or retained in violation of CalECPA or the
Fourth Amendment).2 As stated in a district attorney’s bulletin describing the new law, “evidence
is subject to suppression by a third party whose rights were not violated by the search…and on the
basis of a statutory violation of any of the Act’s provisions, even though statutory non-compliance
2 CalECPA was passed as SB 178 by a two-thirds majority of the Legislature. Therefore it
is outside the strictures of the so-called “Truth in Evidence” provision of the California Constitution
(Article I, section 28(f)), which otherwise precludes suppression absent violations of the Fourth and
Fourteenth Amendments to the United States Constitution. (See Legislative Counsel’s Digest (2),
2015 Cal. Legis. Serv. Ch. 651 (S.B. 178); see also Caskey, California Search and Seizure (2018).
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may not have violated the Fourth Amendment.” (See Exhibit C (L.A. District Attorney’s Office
One Minute Brief Extra, No. 2016-XI).)
On September 23, 2015, a forensic team of law enforcement agents seized the computers of
Manufacturer and CO-D CO.3 Over the next three weeks, the forensic team imaged (copied) the
devices - twice. See fn. 3, supra. The search warrant, by subsequent admission of team members,
did not comply with CalECPA, the law that would come into effect on January 1, 2016.
On November 10, 2015, the case investigator in this matter, CDI Senior Investigator Susan,
sent requests for expansive examinations of the computers seized from Manufacturer and CO-D
CO to Sergeant Ian Beatty, chief of Computer Forensics Team with the Fraud Division of the
California Department of Insurance (CDI). (See Exhibit F (S.I. __ email to Sgt. Beatty dated
November 10, 2015 entitled “re: CFT Examine,” with two search requests).) The “desired results
from forensic examination” were listed as “e-mail between Manufacturer and Co-D Co showing
how workers’ compensation injury claims were handled and/or processed.” The “keyword” for the
search included, without limitation, “ Defendant.” As a result, the search encompassed scores of
emails sent and received by Ms. Defendant that could not possibly have anything to do with the
criminal investigation, including job notices, applications for employment and other patent
irrelevancies – precisely the type of overly-intrusive search intended to be prevented by CalECPA.
On December 30, 2015, CDI Sgt. Beatty wrote a CalECPA notice to the Department of
Insurance’s Enforcement Branch, and emailed it to the CDI’s Captain of the Professional
Standards Unit, Derrick Lane.4 In relevant part, Sgt. Beatty counseled: “On January 1, 2016, the
… CalECPA … will take effect . . . . [It] makes significant changes to the manner in which law
enforcement may gain access to, obtain and retain electronic communication information . . .
Evidence obtained in violation of these provisions may result in suppression. . . .” (Exhibit G,
3 See Exhibits D (September 28, 2015 memo of Det. Brian Farnsworth describing seizing
computers at Manufacturer on September 23, 2015) and E (September 6, 2016 CFT Det. Herb
Klotzsche memo re: 9/23/2015 computer seizures at Manufacturer and CO-D CO, signed 7/3/2018.)
4 See Exhibit G (December 30, 2015 Sgt. Ian Beatty email to “Enforcement Branch” re
CalECPA warning; selected attachments).
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original emphasis.) The email included links to training materials regarding the new law, and
attached a district attorney’s training bulletin and summary of the new law.
Sgt. Beatty is, of course, the individual to whom S.I. ___ had just recently sent her request
for a detailed forensic examination of the seized Manufacturer and CO-D CO computers. (See
Exhibit F, supra (November 10, 2015 email to Sgt. Beatty attaching broad computer forensic
search requests).)
Notwithstanding his intimate knowledge of the significance of the new law, Sgt. Beatty
evidently went forward and directed that the seized Manufacturer and CO-D CO computers be
examined in accordance with S.I. __’s request, and without mandating that any new warrant be
obtained. By the admission of the forensic analyst assigned to conduct the expansive search,
Systems Analyst Michael Ferjaran, the search of the computers of Manufacturer and CO-D CO
that was assigned by Sgt. Beatty occurred after the new law came into effect on January 1, 2016.
(See Exhibit H (July 17, 2018 email from Systems Analyst Ferjaran stating, “Yes, the images were
examined after Jan 1, 2016 . . . I was still working on examining the case and working on the
report, the case was then placed on hold after March 28, 2106 by CFT Sergeant Ian Beatty.”).) In
fact, according to the Activity Logs of the Fraud Division of the California Department of
Insurance (CDI), Ferjaran spent three weeks illegally searching and analyzing Manufacturer hard
drives, January 27, 2016 through February 18, 2016. (See Exhibit I (highlighted entries of CDI
Fraud Division Activity Logs).)
On February 9, 2016, Analyst Ferjaran sent to S.I. ___ a “verbatim DVD+R of emails
between Manufacturer and CO-D CO,” per the November 10, 2015 request she had sent to Sgt.
Beatty (whose plenary knowledge of the new law had been detailed in his December 30, 2015
email). (See Exhibit J (February 9, 2016 email from Systems Analyst Ferjaran to S.I. __).) S.I. __
thanked him for the DVD. (See Exhibit K (February 9, 2016 email from S.I. __ to Ferjaran).)
Subsequently, S.I. __ acknowledged that she reviewed the DVD from Analyst Ferjaran containing
illegally seized and analyzed emails. (See Exhibits L (S.I. __ email thread re: reviewing electronic
communication after January 1, 2016 with knowledge of CalECPA) and M
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(Pages from S.I. __'s September 17, 2018 report admitting that she was reviewing Ferjaran's DVD
when she received Sgt. Beatty’s March 28, 2018 email).)
The entire contents of the February 9, 2016 DVD, which reflect the post-January 1, 2016
search of the seized computers in violation of CalECPA, were produced to the parties at the
arraignment in this case. They include all the fruits of overly-intrusive law enforcement searches
intended to be addressed by the new law. These include items entirely unrelated to this case, most
outrageously attorney-client privileged communications. Other items produced from the date of
arraignment until as recently as October, 2018, include medical records of persons having nothing
to do with this case, and unjustifiable intrusions such as family wedding photos, pets and music
collections. (See Exhibit N (samples of the irrelevant materials taken from the seized computers)
and Exhibit O (samples of private family photographs and loving texts between spouses extracted
from seized computers).5 See also Exhibit P (Emails facially designated as attorney-client
privileged material, reviewed by the People, and distributed in discovery at arraignment, including
privileged emails to undersigned counsel in this case!6).)
Other materials which appear to have been obtained from the seized computers, in violation
of existing law, are also interspersed throughout discovery. But, their origin is unclear because
they were not produced in native format. Instead, the defense was provided with scanned versions
of printed-out hard copies of emails and other electronic materials. The burden must shift to the
prosecution to show that these materials were not seized pursuant to the unlawful search(es) of the
computers that occurred. (Alderman v. United States (1969) 394 U.S. 165, 183; Nardone v. United
States (1939) 308 U.S. 338, 341; People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 411.)
On April 26, 2016 – following the effective date of CalECPA – a second warrant was
served on Central Occupational Medicine Providers (COMP) for additional records. The execution
5 In order to avoid further exploitation of these violations of law, other, more intimate
materials, including those of co-defendant, are not included as exhibits hereto. Should the Court
need to see such items, counsel for Ms. Defendant can proffer multiple examples to the Court.
6 The contents of the emails contained in Exhibit P were redacted by the defense for this
Exhibit to remove privileged material.
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of that warrant violated the notice requirements of CalECPA. Penal Code section 1546.2 requires
that there be notice of the execution of the warrant contemporaneously with the execution.7
Under emergency seizure provisions, there can be delay of notice for three days.8 Beyond
three days, judicial authorization is required, and even such judicial authorization can only extend
ninety days. (See footnote 8, supra.) No notice was provided here for eleven months, until, at the
arraignment, the warrant and return were provided as Exhibits 124 and 125 of the voluminous
discovery. Thus, the records seized under the purported authority of the warrant must be
suppressed, along with the tainted fruits. It is unclear which MEDrecords provided to the defense
were obtained pursuant to that search, and which may have pre-dated CalECPA. A hearing should
be held to determine which records must be suppressed given that the April 26, 2016 warrant was
not CalECPA compliant. Illegal distribution of the materials is discussed at III(D), infra.
Not until March 28, 2016, did Sgt. Beatty (to whom S.I. __ had sent her initial request for
searches of the seized computers) first email S.I. __ and other investigators telling them that their
investigations “are on hold” because their searches of computers seized in 2015 were subject to
suppression absent warrants in compliance with the new law, CalECPA. (See Exhibit B, supra.)
Sgt. Beatty’s email specifically made note of this case (among six others), expressing concern
7 Penal Code section 1546.2(a)(1) reads, in relevant part, as follows:
“Except as otherwise provided in this section, any government entity that executes a warrant,
or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve upon, …
the identified targets of the warrant or emergency access, a notice that informs the recipient that
information about the recipient has been compelled or obtained, and states with reasonable
specificity the nature of the government investigation under which the information is sought. The
notice shall include a copy of the warrant or a written statement setting forth facts giving rise to the
emergency. The notice shall be provided contemporaneously with the execution of a warrant, or, in
the case of an emergency, within three court days after obtaining the electronic information.”
8 (b)(1) When a warrant is sought or electronic information is obtained in an emergency
under Section 1546.1, the government entity may submit a request supported by a sworn
affidavit for an order delaying notification and prohibiting any party providing information from
notifying any other party that information has been sought. The court shall issue the order if the
court determines that there is reason to believe that notification may have an adverse result, but
only for the period of time that the court finds there is reason to believe that the notification may
have that adverse result, and not to exceed 90 days.
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about suppression due to the lack of compliance with CalECPA. Indeed, the Manufacturer
investigation was the very first referenced in a short list in the email. Sgt. Beatty noted, “It is the
opinion of the Los Angeles DA’s office that a new search warrant must be written to comply with
the Cal ECPA requirements for the search to continue in 2016” even though items were seized in
2015. Presumably to protect against just the type of violations that occurred here, Sgt. Beatty also
included a “template” from the “San Diego DA’s office that was used to examine previously
seized digital evidence that is Cal ECPA compliant,” noting that it “adds the new Cal ECPA
verbiage” and “a new provision to seal any information that is unrelated to the objective of the
search warrant (a provision of Cal ECPA).” (See Exhibit B (Beatty email), at pp. 1-2.)
Sgt. Beatty’s March 28, 2016 email to S.I. __ and others made clear the impropriety of
what he and S.I. __ had directed regarding the Manufacturer and CO-D CO computers. A district
attorney’s bulletin (Exhibit C of this motion) was attached to his email and stated:
“Q: If a search warrant for electronic information was issued before the new law
became effective, is it still valid for a search or forensic exam of a device?
A: No. A warrant issued before January 1, 2016, that does not comply with SB 178 is
not legal authority to compel production of or access to electronic information after that
date. A new warrant that complies with SB 178 should be obtained.” (See Exhibit C, at 6.)
Although any agents’ negligence of the requirements of CalECPA would not excuse the
violative searches, the circumstances in this case indicate willful disregard of the law. How could
Sgt. Beatty have waited so long - until March 28, 2016 - when he had plenary knowledge of the
nature and consequences of violative searches as of December 30, 2015, before CalECPA’s
effective date? Sgt. Beatty's email to S.I. __ and others (Exhibit B, supra) was three months after
the new law took effect. It was months after the seizure of Manufacturer and CO-D CO
computers pursuant to a warrant rendered invalid by the then-effective CalECPA. That email
(Exhibit B, supra) was sent six weeks after the assigned Systems Analyst Ferjaran, had sent S.I.
__ the fruits of his violative search (on a CD subsequently copied and produced to the parties at
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the arraignment). (See Exhibit J, supra.)9 How could specialized personnel, including Analyst
Ferjaran, have acted in such blatant disregard of the law which was a “game-changer” in their
specialized field?
In sum, agents seized and imaged the seized computers - made two images, in fact - in
2015. But, the search directed by S.I. __ commenced after January 1, 2016, while CalECPA was in
effect (see Exhibit I, supra). Moreover, the sergeant to whom S.I. __ had sent her initial request
for a forensic search was himself an authority on the new law. Instead of calling a halt to the
forensic analyst’s search of the seized Manufacturer and CO-D CO computers, which he
presumably had assigned, Sgt. Beatty appears to have waited three months to formally apprise S.I.
__ and others involved in the violative search (perhaps he was aware that they already knew about
the sea change in the law?). At that point, of course, the seized computers had been imaged and
intimately searched – pursuant to a defective warrant - by Systems Analyst Ferjaran pursuant to
S.I. __’s expansive request which she had sent to Sgt. Beatty (See Exhibit I, supra). The fruits
were delivered to S.I. __ and reviewed by her (See Exhibits L and M, supra) over a month after
the new law took effect, and were produced to all parties a year later.
In July, 2018, S.I. __ attempted to get the Regional Computer Forensic Lab10 to prepare a
copy of the images of the seized computers to provide to the defense, “but they will not touch it
since CDI already violated CalECPA rules,” according to a Sergeant Detective working with S.I.
__. (See Exhibit Q (August 3, 2018 email from CDI Detective Sgt. Myra Svoboda to Det. Brian
Farnsworth).) It was only then - in 2018 - that the People evidently first sought a search warrant in
(attempted) compliance with CalECPA.11
9 As discussed in Section III D, infra, that distribution also violated Penal Code section 1536
and established case law.
10 According to the District Attorney, “The Riverside County DA's Office has personnel
assigned to this lab. The Orange County RCFL's services are available to any law enforcement
agencies with jurisdiction in Southern California.” See
http://www.rivcoda.org/opencms/investigation/taskforces.htm.
11 In contravention of CalECPA, no steps have ever been taken to segregate seized materials
that are irrelevant to the current investigation. Rather, the defense has been provided with wholesale
copies of all seized computers.
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On August 3, 2018, over two and one-half years after the inadequate warrant was executed,
another warrant to search the seized computers was signed by Judge Samuel Diaz (See Exhibit R.)
The requirement of Penal Code section 1546.2, subd. (a), subs. (1) of contemporaneous notice12
was ignored by the People. No notice was ever given, to the date of this writing. The defense
unearthed the new warrant buried among the many pages of untimely discovery provided on
September 17, 2018.
No judicial authorization or curative warrant has been sought to justify the post-CalECPA
searches of the products of the 2015 seizures of Wells Fargo Bank and Paychex payroll records of
Manufacturer, or the post-CalECPA distribution of such materials to personnel of the insurance
companies named in the Complaint. Even if the products of the searches and seizure of Wells Fargo
Bank and Paychex records had been analyzed by law enforcement prior to CalECPA’s January 1,
2016 effective date, the distribution of those records is still in violation of Penal Code section 1536
(discussed in detail in III(D), infra) because there was no judicial authorization for such distribution.
to the extent that law enforcement sought to analyze those records after January 1, 2016, they were
required to request a curative warrant. They did not do so.
Slamming the barn doors after the horses are out is insufficient under CalECPA and the
Fourth Amendment.13 Nor could any claimed ignorance of the involved law enforcement
personnel regarding CalECPA excuse violative searches. CalECPA was a well-publicized law that
made sea-changes to their specific area of expertise. The hoary homily that “ignorance of the law
12 Penal Code section 1546.2(a)(1) reads, in relevant part, as follows:
“Except as otherwise provided in this section, any government entity that executes a
warrant, or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve
upon, … the identified targets of the warrant or emergency access, a notice that informs the
recipient that information about the recipient has been compelled or obtained, and states with
reasonable specificity the nature of the government investigation under which the information is
sought. The notice shall include a copy of the warrant or a written statement setting forth facts
giving rise to the emergency. The notice shall be provided contemporaneously with the execution
of a warrant, or, in the case of an emergency, within three court days after obtaining the electronic
information.”
13 All references to the Fourth Amendment throughout this document also reference the
Fourteenth Amendment which incorporates the Fourth Amendment as applied to the States.
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is no excuse” must apply at least equally to highly-trained law enforcement as it does to
uneducated laypeople. Accordingly, the electronic communications information seized from
Manufacturer and CO-D CO must be suppressed, along with the tainted fruits of the searches. The
fruit of the unlawful distribution of materials seized from Wells Fargo and Paychex must also be
suppressed.14
In light of the violative, intrusive, and overbroad searches of the Manufacturer and CO-D
CO computers especially, as well as the unauthorized distribution materials seized from
Manufacturer, CO-D CO, COMP, Wells Fargo Bank and Paychex, the burden shifts to the People
to demonstrate that all evidence supporting probable cause in this case, and all evidence sought to
be admitted at the preliminary hearing and at trial, is untainted by the illegal searches. (Alderman
v. United States, supra, 394 U.S. at 183; Nardone v. United States, supra, 308 U.S. at 341; People
v. Superior Court (Keithley) , supra, 13 Cal.3d at 411.)
B. Violations beyond CalECPA
Violations of provisions of law beyond CalECPA also occurred, and further support
suppression. Penal Code section 1536, and the interpretive case law, establish that distribution of
material seized under warrant can only occur with explicit judicial authorization.
Email communications first disclosed to the defense on October 26, 2018 evince the
People’s wholesale disclosure of thousands of pages of seized materials to private parties -
personnel of the special investigative units of Zenith Insurance Company, Everest National
Insurance Company, and Security National Insurance Company, among others. Commencing in
November 10, 2015, S.I. Susan __, the lead investigator on this case, offered personnel of insurers
Zenith, Everest and Security National (aka Amtrust) copies of five to six 3-ring binders of records
seized during the execution of the searches of Manufacturer, CO-D CO and MED on September
23, 2015. (See Exhibit S (email from S.I. __ to special investigative unit personnel of insurers).)
The disclosures continued, after the validity of the 2015 warrant expired upon the effective date of
CalECPA, including the disclosure of voluminous seized materials to Zenith, such
14 As noted above, Penal Code section 1546.4(c) also provides for destruction of
materials as well as suppression. The defense seeks that remedy as well.
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as medical records of numerous Manufacturer personnel. S.I. __ even disclosed to Nancy Stone, a
Fraud Specialist for Zenith, a CD containing over 3,000 pages of materials from at least four
search warrant locales (Manufacturer, CO-D CO, MED and WFB). (See Exhibits T and U
(emails from S.I. __ to Zenith’s Nancy Stone).) Similarly, S.I. __ disclosed Manufacturer payroll
records seized from MED to Insurance Company of the West’s Lynette Caldwell, and Everest’s
Premium Audit Director Danielle Pennison. (See Exhibits V and W.). Insurers’ personnel to
whom seized materials were disclosed included (undoubtedly among others) Zenith’s Nancy
Stone, Everest’s Denielle Pennison, ICW’s Lynette Caldwell, Security National/Amtrust’s
Jennifer Sellers, and Everest’s George Hickler.
Apart and separate from CalECPA, these wholesale distributions of material to third parties
were done without seeking authorization from the Court, all in clear violation of Penal Code
section 1536.
C. Timeline Of Events
September 23, 2015 Search warrants executed on Manufacturer, CO-D CO, COMP,
Paychex and Wells Fargo Bank.
November 10, 2015 Riverside County DA Senior Investigator (S.I. __) sent
request for expansive examinations of the computers seized from
Manufacturer and CO-D CO to Sgt. Ian Beatty, Chief, Computer
Forensics Team, California Department of Insurance, Fraud
Division.
November 10, 2015-March 3, 2017
S.I. __ provided personnel of insurers Zenith, Everest and Security
National/Amtrust copies of five to six three-ring binders of records
seized during the September 23, 2015 execution of the searches of
Manufacturer, CO-D CO and COMP. The disclosures continued
through March, 2017, including the disclosure of voluminous seized
materials to Zenith, such as medical records of Manufacturer
personnel, a CD of over 3,000 pages of materials from all three
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December 30, 2015
February 9, 2016
March 28, 2016
April 26, 2016
June 28, 2018
search warrant locales, and Manufacturer’s bank records obtained by
warrant from WFB. Manufacturer payroll records obtained by
warrant from Paychex, Inc. were provided to Insurance Company of
the West and Everest. All of these disclosures to private parties were
without judicial authorization.
Sgt. Beatty circulated an email to the CDI Enforcement Division
notifying recipients that CalECPA was going into effect on January
1, 2016 and that, in essence, searches of previously seized computers
would be subject to suppression without the authorization of a new,
CalECPA-compliant warrant.
Systems Analyst Michael Ferjaran sent his first response to S.I. __’s
request of November 10, 2015 - a DVD containing emails based
upon searches that he admitted occurred after January 1, 2016. Sgt.
Beatty emailed S.I. __ and other investigators stating that forensic
examinations of the seized computers “are on hold” because
searches of computers seized in 2015 were subject to suppression
absent warrants in compliance with CalECPA, and specifically
referencing the seizures of computers from this prosecution. It
quotes a District Attorney office memo stating that a new CalECPA-
compliant warrant “should be obtained.”
A second search warrant was executed at MEDseeking additional
medical records. The notice requirements of Penal Code section
1546.2 were completely disregarded.
Over two years after the “on hold” memo was circulated, and one
year and nine months after the distribution of illegally seized
materials at the arraignment, S.I. __ met with members of the
Defendant defense team to review (over several days) to review over
200 boxes of seized materials, most of which had never previously
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July, 2018
August 3, 2018
September 17, 2018
October 25, 2018
made available to the defense. At that time it was revealed for the
first time that multiple electronic devices, including computers
seized from Manufacturer and CO-D CO, had not been produced to
the defense, despite the certainty that the devices would contain
material evidence required by law to be provided to Defendant. The
defense requested copies of all seized computers.
S.I. __ attempted to get the Regional Computer Forensic Lab utilized
by the People to prepare a copy of the images of the seized
computers to provide to the defense, “but they will not touch it since
CDI [Calif. Dep’t of Ins.] already violated CalECPA rules.” (See
Exhibit Q.)
S.I. __ sought and received a second warrant for the search and
analysis of the computers seized in 2015, more than two and half
years earlier. S.I. __ subsequently violated the terms of the 2018
warrant by ignoring the notice requirements of the warrant, drafted
by her and mandated by Penal Code section 1546.2(a).
S.I. __ drafted a memo (see Exhibit M, supra) outlining events,
including her review of materials analyzed after the effective date of
CalECPA. In it she discloses the belated application and issuance of
a subsequent warrant, purportedly compliant with CalECPA, to
search the 20 computers seized in 2015. Attachments to S.I. __’s
memo include a copy of the warrant itself and declaration in support
thereof. This was the only notice of the warrant that the defense has
received to date, in violation of Penal Code section 1546.2.
Discovery materials were delivered to defense counsel. The
materials include emails of the law enforcement personnel involved
in the searches and analyses of the seized electronic communications
information in this case. The emails revealed to the defense, for the
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first time, the sequence of those events. Several of the exhibits in
support of this motion come from this belated discovery.
III.
UNLAWFUL SEARCHES AND SEIZURES REQUIRE
SUPPRESSION OF THE ELECTRONIC COMMUNICATIONS
INFORMATION AND THE TAINTED FRUITS
There are three separate violations of statutory and constitutional law requiring suppression
of evidence derived from the illegal conduct that occurred here. First are the searches in violation
of CalECPA - Penal Code sections 1546, et seq. Second is the illegal wholesale seizure of all
electronic communication information by its prolonged retention without lawful authority from
January 1, 2016 through August 3, 2018. Third is the violation of the terms of the September 16,
2015 warrant, and California and Federal law, by the unauthorized distribution of items in the
custody of this Court to third parties, in violation of Penal Code section 1536.
A. Violations of CalECPA
Extensive searches and analyses occurred after January 1, 2016. The People and its agents
all knew such searches and analyses were illegal since the initial 2015 warrant pursuant to which
over 20 computers, and other electronic communications information, had been seized, was
inconsistent with the requirements of Penal Code section 1546.1. (See, e.g., Exhibit M, supra (p. 2
– S.I. __ acknowledges that her first review of the analyzed materials seized from the computers
was after February 9, 2016 and continued until March 28, 2016); Exhibit H, supra (Systems
Analyst Ferjaran acknowledgement that he searched the seized computers after January 1, 2016).)
Penal Code section 1546.1(a) requires, inter alia, that there be specificity as to the time
periods covered, the target individuals or accounts, the applications or services covered, and the
types of information sought. Numerous prosecutorial agents recognized that the September, 2015
warrant failed to meet those criteria and, therefore, before analyzing any seized electronic
information, a new, CalECPA-compliant warrant was required. (See, e.g., Exhibit B.)
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Further, the prosecution plan for analyzing the materials was inherently inconsistent with
the requirement of specificity – the request for forensic analysis (Exhibit F), despite reference to
the worker’s compensation and related investigation, sought without limitation all emails from
numerous parties with Defendant, thus guaranteeing that material utterly irrelevant to any activity
pertaining to the investigation would be produced. The guaranteed outcome was achieved. In its
initial discovery production at the arraignment in this case, twenty-one months after being formally
advised that the warrant was not compliant with current law, the People turned over to each
defendant thousands of pages of items bearing no connection whatsoever to the objective of the
warrant. For instance, unrelated to the keyword search, a 2,300 page printout of the contents of a
laptop owned by Defendant’s husband, Defendant, containing absolutely no materials remotely
relevant to the charges was distributed to all defendants. (Referencing Item 37 within initial
Discovery Item 141, the results of the “CFT” (the product of “Computer Forensic Tools’.)
Penal Code section 1546.1(b) requires segregation and sealing of any electronic
information irrelevant to the prosecution – “any information obtained through the execution of the
warrant that is unrelated to the objective of the warrant shall be sealed and shall not be subject to
further review, use, or disclosure except pursuant to a court order….” No effort has ever been
made by the People to comply with this provision of law - under either the first warrant sought in
2015, or the purportedly Cal-ECPA-compliant warrant sought in 2018. As a result, personal
photographs, intimate communication between spouses, musings by co-defendant Co-defendant
about “the perfect Latina wife,” messages to Co-defendant’ daughter expressing devotion and
similar highly private materials were subject to virtually unlimited exposure to countless law
enforcement agents and to co-defendants.
Since the initial 2015 warrant was non-compliant with 1546.1, the court issuing the warrant
was not provided with the options listed in 1546.1, subd. (e) of CalECPA, to wit:
(1) Appoint a special master, as described in subdivision (d) of Section 1524,
charged with ensuring that only information necessary to achieve the objective of
the warrant or order is produced or accessed.
(2) Require that any information obtained through the execution of the warrant or
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order that is unrelated to the objective of the warrant be destroyed as soon as
feasible after the termination of the current investigation and any related
investigations or proceedings.
The notice requirements of Penal Code section 1546.1(a)(1)15 have been ignored by the
People, including through the present. That section mandates notice of the execution of a warrant
contemporaneously with the execution of the warrant. The post-CalECPA warrant dated August 3,
2018, specifically required the contemporaneous notice provided for in 1546.1(a)(2). (See Exhibit
R, page 8 – notated as Page 5.) The notice to “identified targets” mandated by CalECPA must
include a copy of the warrant and “with reasonable specificity the nature of the government
investigation under which the information is sought.” Neither defense counsel, nor Defendant,
nor her husband, Defendant (listed in both warrants as “Darren” Defendant), received notice at the
time of the execution of the purportedly Cal-ECPA-compliant 2018 warrant. No notice has been
received as of the date of this writing.
Defendant was entitled, under 1546.1(e), to “petition” the issuing court for either option
provided for in subsections (1) or (2), supra. Since she has never been given the contemporaneous
notice of the search required in Penal Code section 1546.2(a)(1), even though the second warrant
signed August 3, 2018, specifically required such notice,16 she was unable to seek, for instance, the
15 Penal Code section 1546.2(a)(1) reads as follows:
(a)(1) Except as otherwise provided in this section, any government entity that executes a
warrant, or obtains electronic information in an emergency pursuant to Section 1546.1, shall serve
upon, or deliver to by registered or first-class mail, electronic mail, or other means reasonably
calculated to be effective, the identified targets of the warrant or emergency access, a notice that
informs the recipient that information about the recipient has been compelled or obtained, and
states with reasonable specificity the nature of the government investigation under which the
information is sought. The notice shall include a copy of the warrant or a written statement setting
forth facts giving rise to the emergency. The notice shall be provided contemporaneously with the
execution of a warrant, or, in the case of an emergency, within three court days after obtaining the
electronic information.
16 See p. 8 of Exhibit R, “The notice [of the search warrant, including a copy of the warrant
itself] shall be provided via mail/email to the defendants in this case once the warrant is approved.”
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appointment of a special master.17 The extent of the violation of the notice requirement is striking
– it has never been made, including through the date of this writing. Buried in a belated discovery
disclosure of September 26, 2018, seven weeks after the execution of the new 2018 warrant, and as
an attachment to a law enforcement officer’s memorandum, was the affidavit and warrant. The
People have blatantly violated both the warrant itself and the notice requirement of Penal Code
section 1546.2(a)(1).
As far as the defense is aware, the People never even attempted to obtain a post-Cal-ECPA
warrant to justify post-CalECPA searches and analyses of the electronic records of Manufacturer
from Wells Fargo Bank and Paychex seized pursuant to the 2015 warrants.
B. Suppression of Evidence Under CalECPA
Penal Code section 1546.4 reads in relevant part as follows:
(a) Any person in a trial, hearing, or proceeding may move to suppress any electronic
information obtained or retained in violation of the Fourth Amendment to the United States
Constitution or of this chapter. The motion shall be made, determined, and be subject to
review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of
Section 1538.5.
* * *
(c) An individual whose information is targeted by a warrant, order, or other legal process
that is inconsistent with this chapter, or the California Constitution or the United States
Constitution, or a service provider or any other recipient of the warrant, order, or other
legal process may petition the issuing court to void or modify the warrant, order, or
process, or to order the destruction of any information obtained in violation of this chapter,
or the California Constitution, or the United States Constitution.
The rules of suppression under CalECPA are fundamentally different from the typical rules
of suppression. As explained in the definitive bench book, California Search and Seizure (2018),
17 A special master would have been most appropriate since the People have reviewed
attorney-client privileged material, including communications with the undersigned counsel. The
People have never attempted to prevent, nor even acknowledged, this egregious violation of both
the law and their professional obligations as members of the California Bar. See Exhibit P, supra.
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by Hon. Gregory M. Caskey, with respect to CalECPA, “If the warrant failed to comply with
subdivision (d), evidence seized pursuant to the search warrant is subject to suppression regardless
of whether the officer complied with the fourth amendment and even if the court were satisfied the
officer acted in good faith…. [T]he ‘good faith’ exception to the judicially-created exclusionary
rule does not apply when a court is asked to evaluate a statutory suppression mandate.” (Id. at
§3.1.) See also, e.g., People v. Jackson (2008) 129 Cal.App.4th 129, 153 (holding that statutory
suppression laws are not subject to the good faith analysis, discussing the California wiretap law).
The traditional rules of standing also do not apply under CalECPA. Again, referencing
Caskey, California Search and Seizure, supra, “If the motion to suppress is based upon a violation
of the CalECPA, this new statutory suppression procedure is not dependent upon fourth
amendment ’standing’ considerations. In other words, the CalECPA gives ‘vicarious standing’ to
any individual who asserts electronic information being introduced by the People as evidence was
obtained or retained in violation of CalECPA.” (Id. at §3.1.) This is consistent with the guidance
provided by California District Attorney Offices that was referenced by Sgt. Ian Beatty in his
email to the Enforcement Branch. (See Exhibits B, C and G.)
Further, as referenced earlier, the limitations on suppression of evidence set forth in
Article I, section 28(f) of the California Constitution, do not apply to CalECPA because SB 178,
the bill enacted as CalECPA, passed by a two-thirds majority of the Legislature. (See footnote 2,
supra¸and People v. Jackson, supra¸129 Cal.App.4th at 153.)
Caskey, California Search and Seizure, supra, offers bench officers three questions to pose
when determining whether suppression is required, drawing from the guidance of People v.
Jackson, supra¸129 Cal.App.4th at 164-165:
Suppression of evidence seized in violation of the CalECPA should be evaluated with a
higher degree of scrutiny than under fourth amendment jurisprudence. A court asked to
evaluate the appropriateness of the remedy of suppression once a violation of the
CalECPA has been found should consider the analysis utilized in People v. Jackson, 129
Cal. App.4th 129, 28 Cal.Rptr.3d 136 (2d Dist. 2005)…. In Jackson, the court held the
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proper analysis of a motion to suppress evidence must ask and answer a series of
questions, which we have adapted to the CalECPA:
(1) Has the defendant established a violation of a provision of the CalECPA? If not, the
motion is denied;
(2) If a violation of the CalECPA has been established, was the provision violated one
that “was intended to play a central role in the statutory scheme?” If the provision was
not intended to “play a central role,” failing to comply with it will not render the
evidence unlawful and the motion is denied.
(3) If the provision violated was central to the legislative scheme was the purpose of the
provision achieved in spite of the error? If the purpose was achieved, the motion is
denied. If the purpose was not achieved, the motion is granted.
(Caskey, California Search and Seizure, supra, 10:20.)
The answers to all three questions are clear and unambiguous in this case. First, the defense
has attached written admissions of law enforcement which acknowledge violations of CalECPA by
the analysis and review of seized materials after the January 1, 2016 effective date of CalECPA
where the materials were previously seized by means of an admittedly non-compliant warrant, in
violation of section 1546.1(d). After Cal-ECPA’s effective date, law enforcement took no steps to
segregate and seal materials unrelated to the criminal investigation and, in a highly aggravated
fashion, distributed such materials, in violation of 1546.1(d). Law enforcement also failed to
provide the notice required to the parties whose information was “compelled or obtained,” in
violation of Penal Code section 1546.2(a)(1) and the specific terms of 2018 the warrant. (See
footnote 12, supra.) Further, law enforcement retained the electronic material seized in 2015 for
over 31 months without seeking a Cal-ECPA-compliant warrant, in violation of the clear intent of
CalECPA, as indicated by the language of 1546.1(g),18 which requires the destruction of material
voluntarily obtained after 90 days unless a court order specifically authorizes further retention.
18 (g) If a government entity receives electronic communication information voluntarily
provided pursuant to subdivision (f), it shall destroy that information within 90 days unless one or
more of the following circumstances apply:
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Second, there can be no cavil that the provisions violated by the People play a central role in
CalECPA. Requiring a compliant warrant prior to both analysis and distribution, segregation of non-
incriminating material (including, most egregiously here, privileged and personal materials),
preventing distributing of non-incriminating material, providing notice to persons targeted, and not
retaining materials without a court order authorizing such retention, are the very essence of
CalECPA. Without those provisions, what is left?
Third, with the possible exception of the notice requirement, the central purpose of the
legislative scheme was not only “not achieved,” it was utterly frustrated by the People in this case.
The actions of law enforcement in this matter provide an elegant guidebook on how to fail to
comply with CalECPA.
All the electronic evidence from Manufacturer, CO-D CO and MEDthat was seized, retained
and searched in violation of the chapter entitled CalECPA must be suppressed from evidence. The
“fruit of the poisonous tree,” as well as the tree itself, must be excluded.
“If the challenged police conduct is shown to be violative of the Fourth Amendment, the
exclusionary rule requires that all evidence obtained as a result of such conduct be
suppressed. Such evidence includes not only what was seized in the course of the unlawful
conduct itself—the so-called ‘primary’ evidence but also what was subsequently obtained
through the information gained by the police in the course of such conduct—the so-called
‘derivative’ or ‘secondary’ evidence. Thus, the ‘fruit of the poisonous tree,’ as well as the
tree itself, must be excluded.
(People v. Williams (1988) 405 Cal.3rd 1268, 1299, abrogated on other grounds in People v. Diaz
(2015) 60 Cal.4th 1176, citations omitted; see also Alderman v. United States, supra, 394 U.S. at
(1) The government entity has or obtains the specific consent of the sender or recipient of the
electronic communications about which information was disclosed.
(2) The government entity obtains a court order authorizing the retention of the information.
A court shall issue a retention order upon a finding that the conditions justifying the initial
voluntary disclosure persist, in which case the court shall authorize the retention of the
information only for so long as those conditions persist, or there is probable cause to believe
that the information constitutes evidence that a crime has been committed.
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171; Wong Sun v. United States (1963) 371 U.S. 471, 484–487; Nardone v. United States, supra,
308 U.S. at 340–341.)
All of the electronic records seized from Manufacturer, CO-D CO, and MEDmust be
excluded from evidence, recovered from wherever the records were distributed, and destroyed,
pursuant to Penal Code section 1546.4(c). A hearing must be held to determine the extent of the
evidence that is tainted by the post-Cal-ECPA distribution of illegally analyzed material. Such a
determination is essential to determine the admissibility of evidence which the People may attempt
to admit at the preliminary hearing and trial.
C. Unauthorized Retention of the Electronic Communication Information
From January 1, 2016,Through August 3, 2018 Requires Suppression
Once CalECPA came into effect on January 1, 2016, there was no legal justification for the
retention of the electronic communications information found on the forensic images of the
computers. While a reasonable amount of delay could be justified before seeking judicial
authorization to retain the copies of the computers and the electronic communication information
contained thereon, 31 months is outside all standards of reasonableness.
There is a paucity of California law on the subject. However, under Federal law, the clear
standard is reasonableness, and a showing of diligence on the part of law enforcement. In this
case, there was neither.
“Of course, a seizure reasonable at its inception ... may become unreasonable as a result of
its duration or for other reasons.” (Segura v. United States (1984) 468 U.S. 796, 812 (plurality
opinion); See, e.g., United States v. Song Ja Cha (9th Cir. 2010) 597 F.3d 995, 1000) (seizure of a
home for 26.5 hours before obtaining a warrant was “too long under the Fourth Amendment”);
United States v. Mitchell (11th Cir. 2009) 565 F.3d 1347, 1351 (reversing conviction in child
pornography case because although initial warrantless removal of hard drive from computer in
defendant’s home was permissible, 21-day delay in obtaining search warrant for seized hard drive
was unreasonable under circumstances, and therefore evidence should have been suppressed); see
also United States v. Place (1983) 462 U.S. 696, 709 (“[T]he brevity of the invasion of the
individual's Fourth Amendment interests is an important factor in determining whether the seizure
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is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the
effect of the length of the detention, we take into account whether the police diligently pursue their
investigation.”).
Here there was neither a reasonable delay nor diligence on the part of law enforcement.
Thirty-one months is an absurd and unjustifiable amount of time to seek a warrant authorizing a
search, especially for electronic information. After being apprised of the need for a subsequent
warrant, S.I. __ did nothing beyond disregard the new law and fail to acknowledge – for almost
three years – the violations of CalECPA that had occurred. She ignored CalECPA’s notice
requirement, continued to use and distribute to unauthorized third parties the information which
she knew had been illegally analyzed under the current law, ensured the fruits of unlawful searches
were distributed in discovery (including privileged and personal materials), and acted 31 months
later only when her hand was forced by the legitimate demands of defense counsel to receive
discovery. (See Exhibit L, supra.)
Federal courts have held that a 21-day delay in seeking a search warrant to analyze images
of seized computer hard drives is unreasonable. (United States v. Mitchell, supra, 565 F.3d at
1351.) It is beyond all imagination that a 31-month delay can be anything other than unreasonable,
especially in light of the inclusion in Penal Code section 1546.4 of the category of “retention” as
grounds for suppression and destruction – “Any person in a trial, hearing, or proceeding may move
to suppress any electronic information obtained or retained in violation of the Fourth Amendment
to the United States Constitution or of this chapter.” As the Federal authorities establish, such
retention is violative of the Fourth Amendment, and also the terms of CalECPA.
D. Unauthorized Distribution of Seized Information Requires Suppression
Records seized pursuant to warrant are in the constructive custody of the court issuing the
warrant. “[A]n officer seizing and holding property under a search warrant does so on behalf of the
court; possession by the officer is, in contemplation of the law, possession by the court.” (People v.
Superior Court (Loar) (1972) 28 Cal.App.3rd 600, 608.)
Penal Code section 1536 provides that property seized under a search warrant “must be
retained by the officer in his custody, subject to the order of the court to which he is required to
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return the proceedings before him, or of any other court in which the offense in respect to which the
property or things taken is triable.’” (Oziel v. Superior Court (1990) 223 Cal.App.3rd 1284, 1293.)
As noted by the Oziel Court, Penal Code section 1536 requires that materials seized
pursuant to warrant are in the constructive custody of the issuing court. Law enforcement is
merely the equivalent of a bailee of the court, authorized to hold the items but without rights of
distribution. “[A]n officer seizing and holding property under a search warrant does so on behalf
of the court; possession by the officer is, in contemplation of the law, possession by the court.”
(Id. at 1292.)
In Saunders v. Superior Court (2017) 12 Cap.App.5th Supp. 1, the Appellate Division
followed the holdings of Oziel v. Superior Court, supra, 223 Cal.App.3rd 1284. Where a
defendant had his mobile telephone records seized from a third party pursuant to search warrant,
the Saunders Court reinforced the requirement of Penal Code section 1536 that release of seized
materials required a court order. More significantly, the Appellate Department reversed the trial
court order releasing the documents because the trial court failed to balance the privacy interests
of the person whose records had been seized against disclosure.
Law enforcement’s failure to seek judicial authority before its broad and unrestrained
distribution to private entities, including personnel of three insurers, with complete disregard to
the privacy interests of the persons whose records were seized, is wholly unreasonable and in
clear violation of long-standing law. Since the seized items which were improperly distributed
were covered by the express terms of CalECPA, suppression from evidence is not precluded by
Article I, section 28(f) and is required by the suppression remedy set forth in CalECPA.
The People’s blatant and repeated violations of section 1536, and unrestrained distribution
of materials under this court’s control, without even attempting to obtain the court’s permission, is
an egregious violation. It can be remedied only by suppression from evidence since any other
ruling would reward and encourage grievous misconduct.
CONCLUSION
For the reasons stated herein, the seized electronic evidence, and its tainted fruits should be
suppressed from evidence, retrieved from all entities to which it was distributed and destroyed.
![[Doc 295] 5-7-2014 MOTION TO SUPPRESS STATEMENTS](https://img.pdfslide.us/doc/110x75/56d6bf921a28ab301696c5ed/doc-295-5-7-2014-motion-to-suppress-statements.jpg)
