As the build up to the Ross Ulbrict's appellate hearing continues, the National Association of Criminal Defense Lawyers has filed an amicus brief criticizing the unconstitutionality of the investigation which lead to the persecution of Ross Ulbricht. The move comes as militia operations motivated by other breaches of the United States constitution by the Federal government have resulted in the liberation of substantial portions of Oregon. Whether the appellate court follows Judge Katherine Forrest in rejecting sanity and constitutional limits remains to be seen.

Full text of the amicus filing is available as plaintext below or as a pdf here:

Case 15-1815, Document 45, 01/19/2016, 1686497, Page1 of 40

15-1815

___________________________________________________

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

_____________________________

UNITED STATES OF AMERICA, Appellee,

-v.ROSS WILLIAM ULBRICHT, AKA DREAD PIRATE ROBERTS, AKA

SILK ROAD, AKA SEALED DEFENDANT 1, AKA DPR, DefendantAppellant.

_____________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

_____________________________

AMICUS CURIAE BRIEF OF THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF

DEFENDANT-APPELLANT AND ARGUING REVERSAL

_____________________________

STEVEN R. MORRISON

UNIVERSITY OF NORTH DAKOTA

SCHOOL OF LAW

1526 Robertson Court

Grand Forks, North Dakota 58201

(617) 749-7817

JOEL B. RUDIN

LAW OFFICES OF JOEL B.

RUDIN, P.C.

600 Fifth Avenue, 10th Floor

New York, NY 10020

(212) 752-7600

Vice Chair, NACDL Amicus

Curiae Committee

Vice Chair, NACDL Amicus

Curiae Committee

Case 15-1815, Document 45, 01/19/2016, 1686497, Page2 of 40

CORPORATE DISCLOSURE STATEMENT

Amicus curiae National Association of Criminal Defense Lawyers

(“NACDL”) submits the following corporate disclosure statement, as required

by Fed. R. App. P. 26.1 and 29(c): NACDL is a nonprofit corporation

organized under the laws of the District of Columbia. It has no parent

corporation, and no publicly held corporation owns ten percent or more of its

stock.

Dated: January 19, 2016

Grand Forks, North Dakota

Steven R. Morrison

Steven R. Morrison

Attorney for Amicus Curiae National Association of

Criminal Defense Lawyers

i

Case 15-1815, Document 45, 01/19/2016, 1686497, Page3 of 40

TABLE OF CONTENTS

Item

Page

CORPORATE DISCLOSURE STATEMENT …………………………………….i

TABLE OF CONTENTS……………………………………………………………………..ii

TABLE OF AUTHORITIES ……………………………………………………………… iii

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY . viii

ARGUMENT ………………………………………………………………………………………. 1

I.

The warrants issued in this case lacked a limiting

statement of particularity and were therefore

unconstitutional, violating the original intent of the

Fourth Amendment, extant historical and contemporary

jurisprudence, and this Court’s case law ……………………………….. 1

A. Introduction ………………………………………………………………. 1

B. The Fourth Amendment at its framing: the need

for particularity …………………………………………………………… 2

C. Updating the Fourth Amendment: new

technology, new interpretations, keeping

faith with privacy………………………………………………………… 5

D. The need for particularity and why it wasn’t met in

Ulbricht’s case ……………………………………………………………. 9

E. What must be done in general …………………………………… 12

F. What should have been done in Ulbricht’s case ………… 23

CONCLUSION …………………………………………………………………………………. 26

CERTIFICATE OF COMPLIANCE ……………………………………………….. 29

CERTIFICATE OF SERVICE …………………………………………………………. 30

ii

Case 15-1815, Document 45, 01/19/2016, 1686497, Page4 of 40

TABLE OF AUTHORITIES

Sources

Page(s)

United States Supreme Court

Boyd v. United States,

116 U.S. 616 (1886) ………………………………………………………………………………. 3

Coolidge v. New Hampshire,

403 U.S. 443 (1971) …………………………………………………………………………20-21

Ex Parte Jackson,

96 U.S. 727 (1877) ………………………………………………………………………………… 6

Horton v. California,

496 U.S. 128 (1990) …………………………………………………………………………21-22

Katz v. United States,

389 U.S. 347 (1967) ………………………………………………………………………………. 7

Kentucky v. King,

563 U.S. 452 (2011) ………………………………………………………………………………. 4

Kyllo v. United States,

533 U.S. 27 (2001) …………………………………………………………………………… 7, 10

Marron v. United States,

275 U.S. 192 (1927) ……………………………………………………………………………. 4-5

Maryland v. Garrison,

480 U.S. 79 (1987) ………………………………………………………………………………. 11

Maryland v. King,

569 U.S. ___, 133 S.Ct. 1958 (2013) …………………………………………………….. 4

Olmstead v. United States,

277 U.S. 438 (1928) ……………………………………………………………………………. 5-6

Payton v. New York,

445 U.S. 573 (1980) ………………………………………………………………………………. 3

iii

Case 15-1815, Document 45, 01/19/2016, 1686497, Page5 of 40

Riley v. California,

134 S.Ct. 2473 (2014)………………………………………………………………. 3, 8, 9, 12

Stanford v. Texas,

379 U.S. 476 (1965) ………………………………………………………………………………. 4

Steagald v. United States,

451 U.S. 204 (1981) ………………………………………………………………………………. 4

United States v. Jacobsen,

466 U.S. 109 (1984) ………………………………………………………………………………. 6

United States v. Jones,

132 S.Ct. 945 (2012) ………………………………………………………………………… 8, 10

United States v. Ramirez,

523 U.S. 65 (1998) ………………………………………………………………………………. 19

Second Circuit Court of Appeals

United States v. Galpin,

720 F.3d 436 (2d Cir. 2013) …………………………………………………………. 3, 9-10

United States v. Ganias,

755 F.3d 125 (2d Cir. 2014) ………………………………………………………………. 4, 8

United States v. Rodriguez,

775 F.3d 533 (2d Cir. 2014) ………………………………………………………………… 11

United States v. Rosa,

626 F.3d 56 (2d Cir. 2010) ………………………………………………………………. 5, 10

United States v. Voustianiouk,

685 F.3d 206 (2d Cir. 2012) ……………………………………………………………….. 4-5

United States Postal Service v. C.E.C. Servs.,

869 F.2d 184 (2d Cir. 1989) ………………………………………………………………… 13

iv

Case 15-1815, Document 45, 01/19/2016, 1686497, Page6 of 40

Other Circuit Courts of Appeals

United States v. Angelos,

433 F.3d 738 (10th Cir. 2006) …………………………………………………………….. 19

United States v. Burgess,

576 F.3d 1078 (10th Cir. 2009) ……………………………………………………… 13, 19

United States v. Carey,

172 F.3d 1268 (10th Cir. 1999) ……………………………………………………….19-20

United States v. Christie,

717 F.3d 1156 (10th Cir. 2013) …………………………………………………………… 20

United States v. Comprehensive Drug Testing, Inc.,

621 F.3d 1162 (9th Cir. 2010) ……………………………………………………….. passim

United States v. Comprehensive Drug Testing, Inc.,

579 F.3d 989 (9th Cir. 2009)……………………………………………………………….. 20

United States v. Grimmett,

439 F.3d 1263 (10th Cir. 2006) ……………………………………………………….13-14

United States v. Maxwell,

285 F.3d 336 (4th Cir. 2002)……………………………………………………………….. 11

United States v. Otero,

563 F.3d 1127 (10th Cir. 2009) ……………………………………………………….. 5, 10

United States v. Riccardi,

405 F.3d 852 (10th Cir. 2005) …………………………………………………………….. 11

United States v. Tamura,

694 F.2d 591 (9th Cir. 1982)……………………………………………………………….. 15

Other Courts

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765) ……………………………………………………………….. 4

v

Case 15-1815, Document 45, 01/19/2016, 1686497, Page7 of 40

In re Appeal of Application for Search Warrant,

71 A.3d 1158 (Vt. 2012) ………………………………………………………………… 13, 16

In the Matter of the Search of: 3817 W. West End, First Floor

Chicago, Illinois 60621,

321 F.Supp.2d 953 (N.D.Ill. 2004) ……………………………………………………… 13

Preventive Medicine Associates, Inc. v. Commonwealth,

465 Mass. 810 (2013) …………………………………………………………………….. 15, 23

State v. Bizewski,

2013 WL 1849282 (Conn. Super. Ct.) …………………………………………………. 14

United States v. Bonner,

2013 WL 3829404 (S.D. Cal.) ……………………………………………………………… 13

United States v. Falkowitz,

214 F.Supp.2d 365 (S.D.N.Y. 2002) ……………………………………………………. 13

United States v. Kim,

677 F.Supp.2d. 930 (S.D. Tex. 2009) ………………………………………………….. 21

Constitutional Provisions

U.S. CONST. amend. IV. ……………………………………………………………………… 12

Rules and Regulations

Fed. R. App. P. 26.1 ………………………………………………………………………………..i

Fed. R. App. P. 29(a) …………………………………………………………………………… ix

Fed. R. App. P. 29(c) ………………………………………………………………………. i, viii

Fed. R. App. P. 29(d) ………………………………………………………………………….. 29

Fed. R. App. P. 32(a) ………………………………………………………………………….. 29

Fed. R. App. P. 32(a)(7)(B)(iii) ……………………………………………………………. 29

Fed. R. App. P. 32(a)(7)(C) …………………………………………………………………. 29

vi

Case 15-1815, Document 45, 01/19/2016, 1686497, Page8 of 40

Fed. R. Crim. P. 41(c) …………………………………………………………………………. 16

2d Cir. R. 29.1 ……………………………………………………………………………………. viii

Other Sources

Athul K. Acharya, Semantic Searches, 63 DUKE L.J. 393 (2013) …………….. 13

Office of Legal Educ. Exec. Office for United States Attorneys,

Searching and Seizing Computers and Obtaining Electronic

Evidence in Criminal Investigations, Dep’t of Justice: Computer

Crime and Intellectual Property Section, Criminal Division (2009),

http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf

………………………………………………………………………………………………………..16-17

Orin S. Kerr, Searches and Seizures in a Digital World,

119 HARV. L. REV. 531 (2005) …………………………………………………………….. 20

Paul Ohm, Massive Hard Drives, General Warrants,

and the Power of Magistrate Judges, 97 VA. L. REV. IN BRIEF 1 (2011) ………. 23

Sam Tanenhaus & Jim Rutenberg, Rand Paul’s Mixed Inheritance,

NEW YORK TIMES, Jan. 25, 2014 ………………………………………………………… 11

10 WORKS OF JOHN ADAMS (C. Adams ed. 1856) ………………………………… 3

vii

Case 15-1815, Document 45, 01/19/2016, 1686497, Page9 of 40

STATEMENT OF IDENTITY, INTEREST, AND AUTHORITY

Amicus the National Association of Criminal Defense Lawyers

(“NACDL”) is a nonprofit voluntary professional bar association that works on

behalf of criminal defense attorneys to ensure justice and due process for those

accused of crime or misconduct.1 NACDL was founded in 1958. It has a

nationwide membership of approximately 10,000 direct members in 28

countries, and 90 state, provincial, and local affiliate organizations totaling up

to 40,000 attorneys. NACDL’s members include private criminal defense

lawyers, public defenders, military defense counsel, law professors, and judges.

NACDL files numerous amicus briefs each year in the Supreme Court and other

courts seeking to provide amicus assistance in cases that present issues of broad

importance to criminal defendants, criminal defense lawyers, and the criminal

justice system as a whole. In particular, in furtherance of NACDL’s mission to

safeguard fundamental constitutional rights, the Association frequently appears

as amicus curiae in cases involving the Fourth Amendment and its state

analogues, speaking to the importance of balancing core constitutional search

and seizure protections with other societal interests.

1

Pursuant to Fed. R. App. P. 29(c)(5) and Rule 29.1 of this Court’s Local

Rules, amicus curiae certify that (1) this brief was authored entirely by counsel

for the NACDL, and not by counsel for any party, in whole or part; (2) no

party or counsel for any party contributed money to fund preparing or

submitting this brief; and (3) apart from the NACDL and its counsel, no other

person contributed money to fund preparing or submitting this brief.

viii

Case 15-1815, Document 45, 01/19/2016, 1686497, Page10 of 40

The NACDL files this brief in support of appellant Ross William

Ulbricht and urges the Court to reverse the District Court decision that denied

Ulbricht’s motion to suppress. The warrants that provided the authority for law

enforcement agents’ search and seizure of Ulbricht’s laptop computer and his

Gmail and Facebook accounts lacked a particularity statement as to the place to

be searched and things to be seized. They were, therefore, unconstitutional

general warrants.

The issue of particularity arising in this case has obvious ramifications

for Ulbricht. This case also reflects ongoing problems with warranting searches

of digital data in a way that promotes effective law enforcement while

protecting citizens’ privacy. While this balance has largely been established as

regards searches of physical spaces, such as mail sent through the United States

Postal Service, physical papers stored in someone’s home, medical records, or

books, courts, including this Court, offer very different and conflicting

approaches to balancing these interests in the digital context. The NACDL

therefore, also asks this Court to address those underlying issues through a

comprehensive articulation of core Fourth Amendment concepts, reinterpreted

for the digital age.

Pursuant to Fed. R. App. P. 29(a), amicus has sought and obtained

consent of all parties to file this brief.

ix

Case 15-1815, Document 45, 01/19/2016, 1686497, Page11 of 40

ARGUMENT

I.

The warrants issued in this case lacked a limiting statement of

particularity and were therefore unconstitutional, violating the

original intent of the Fourth Amendment, extant historical and

contemporary jurisprudence, and this Court’s case law

A.

Introduction

Ulbricht argues, under his issue VI.A, that the District Court erred in

denying his motions to suppress evidence from his laptop and social media

accounts because the warrants authorizing those searches lacked any

particularity. (Blue Br. 2, 98-108). We argue that to satisfy the mandates of the

Fourth Amendment’s particularity requirement, courts must rethink how

magistrates draft and issue warrants. This includes paying special attention to

pre-search instructions as well as post-search reasonableness analyses. To that

end, we proceed in the following manner.

In section B, we discuss the original underpinnings of the Fourth

Amendment’s particularity requirement, which were greatly informed by the

evil of British general warrants and the concomitant need for limiting

statements of particularity.

In section C, we trace the development of Fourth Amendment

jurisprudence through eras of technological advancement, and show that in

each era, courts have been able to reinterpret the application of the Fourth

Amendment to meet new realities while remaining faithful to the Amendment’s

1

Case 15-1815, Document 45, 01/19/2016, 1686497, Page12 of 40

core purpose: to protect individuals’ privacy against undirected and generalized

governmental rummaging.

In section D, we discuss the need for a careful assessment of

particularity statements in warrants to search digital data. We also discuss why

the particularity requirement was not satisfied in Ulbricht’s case.

In section E, we discuss the current law on warranted digital searches. In

this section, we discuss the issue of particularity and the use of both pre-search

instructions, championed by former Ninth Circuit Chief Judge Alex Kozinski,

see United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir.

2010) [hereinafter CDT], and robust post-search reasonableness inquiries into

law enforcement agents’ warranted digital searches. Both pre-search

instructions and post-search reasonableness inquiries are necessary to ensure

the existence and effective operation of limiting statements of particularity.

In section F, we address the warrants that issued in Ulbricht’s case and

offer provisions that the magistrate should have included that would have

supplied the requisite particularity and still ensure effective law enforcement.

B.

The Fourth Amendment at its framing: the need for particularity

Fourth Amendment protections played an essential role in the founding

of the country, and were meant to provide refuge from the “general warrants”

deployed by British authorities during the colonial era, and which spurred the

American Revolution itself:

2

Case 15-1815, Document 45, 01/19/2016, 1686497, Page13 of 40

Our cases have recognized that the Fourth Amendment was the

founding generation’s response to the reviled “general warrants”

and “writs of assistance” of the colonial era, which allowed British

officers to rummage through homes in an unrestrained search for

evidence of criminal activity. Opposition to such searches was in

fact one of the driving forces behind the Revolution itself. In

1761, the patriot James Otis delivered a speech in Boston

denouncing the use of writs of assistance. A young John Adams

was there, and he would later write that “[e]very man of a

crowded audience appeared to me to go away, as I did, ready to

take arms against writs of assistance.” 10 Works of John Adams

247-248 (C. Adams ed. 1856). According to Adams, Otis’s speech

was “the first scene of the first act of opposition to the arbitrary

claims of Great Britain. Then and there the child Independence

was born.” Id., at 248 (quoted in Boyd v. United States, 116 U.S.

616, 625 (1886)).

Riley v. California, 134 S.Ct. 2473, 2494 (2014); see also United States v.

Galpin, 720 F.3d 436, 445 (2d Cir. 2013) (the Fourth Amendment was framed

in opposition to the “indiscriminate searches and seizures conducted by the

British under the authority of general warrants.”) (quoting Payton v. New York,

445 U.S. 573, 583 (1980)) (internal quotes omitted).

The Supreme Court has long been concerned with general warrants and

the unbridled authority they give to law enforcement agents to engage in

boundless rummaging. As the Court noted in 1981,

[t]he general warrant specified only an offense . . . and left to the

discretion of the executing officials the decision as to which

persons should be arrested and which places should be searched.

Similarly, the writs of assistance used in the Colonies noted only

the object of the search . . . and thus left . . . officials completely

free to search any place where they believed such goods might be.

The central objectionable feature of both warrants was that they

provided no judicial check on the determination of the executing

3

Case 15-1815, Document 45, 01/19/2016, 1686497, Page14 of 40

officials that the evidence available justified an intrusion into any

particular home.

Steagald v. United States, 451 U.S. 204, 220 (1981).

This Court expressed the same concern, noting that

General warrants were ones “not grounded upon a sworn oath of

a specific infraction by a particular individual, and thus not limited

in scope and application.” Maryland v. King, ___ U.S. ___, 133

S.Ct. 1958, 1980 (2013). The British Crown had long used these

questionable instruments to enter a political opponent’s home and

seize all his books and papers, hoping to find among them

evidence of criminal activity. See Stanford v. Texas, 379 U.S. 476,

482–83 (1965). The Framers abhorred this practice, believing that

“papers are often the dearest property a man can have” and that

permitting the Government to “sweep away all papers

whatsoever,” without any legal justification, “would destroy all the

comforts of society.” Entick v. Carrington, 95 Eng. Rep. 807,

817–18 (C.P. 1765).

United States v. Ganias, 755 F.3d 125, 134 (2d Cir. 2014).

No warrant, therefore, may issue “unless probable cause is properly

established and the scope of the authorized search is set out with particularity.”

Kentucky v. King, 563 U.S. 452, 459 (2011). This particularity requirement

“makes general searches . . . impossible and prevents the seizure of one thing

under a warrant describing another.” Marron v. United States, 275 U.S. 192,

196 (1927). The warrant must describe with particularity the place to be

searched and items to be seized, and the search and seizure must correspond to

those specific parameters, United States v. Voustianiouk, 685 F.3d 206, 211 (2d

4

Case 15-1815, Document 45, 01/19/2016, 1686497, Page15 of 40

Cir. 2012), leaving “nothing . . . to the discretion of the officer executing the

warrant.” Marron, 275 U.S. at 196.

This Court has explicitly held that a warrant to search the contents of

laptops and storage devices, without a description of the exact items in which

the police were to search, violates the particularity requirement of the Fourth

Amendment. United States v. Rosa, 626 F.3d 56, 62 (2d Cir. 2010). Indeed, the

particularity requirement is “much more important” when a warrant permits a

search of a digital device, id. at 62 (quoting United States v. Otero, 563 F.3d

1127, 1132 (10th Cir. 2009)), and any government position “that the entire

contents of . . . computers and related storage media could be searched under

the terms of [a] warrant leads to the evisceration of the Fourth Amendment’s

requirement of an ex ante probable cause determination.” Id. at 62 n. 2.

C.

Updating the Fourth Amendment: new technology, new

interpretations, keeping faith with privacy

Fourth Amendment jurisprudence bends toward protecting individuals’

privacy rights by remaining faithful to the Framers’ concerns while responding

to new technologies — the application of the Fourth Amendment has changed,

but its concern with privacy, expressed in the requirement of a limiting

statement of particularity, has not and in the digital realm, should not.

Fourth Amendment jurisprudence originally entailed an exclusively

property law-oriented analysis based on concepts of trespass. See Olmstead v.

5

Case 15-1815, Document 45, 01/19/2016, 1686497, Page16 of 40

United States, 277 U.S. 438 (1928). At a time when individuals’ papers and

effects were stored almost solely on their private property, the trespass

approach made sense because it ensured citizens’ privacy in light of

contemporary patterns of life and communication. New technologies inevitably

put strains on that approach, and courts, time after time, have successfully

adapted originalist Fourth Amendment jurisprudence to respond to those new

technologies.

The Pony Express, for example, began its service in 1860 and raised the

issue of mail privacy. This new communicative technology led to the innovative

holding in Ex Parte Jackson, which held that Fourth Amendment protections

extended to individuals’ missives, closed against inspection and sent through

the post. 96 U.S. 727, 733 (1877); see also United States v. Jacobsen, 466 U.S.

109, 113-14 (1984).

In Olmstead, the Supreme Court confronted the disruptive technology

of telephone service, holding that attaching a wire to a telephone line leaving

someone’s private residence was not a Fourth Amendment violation because

the Amendment could not be “extended and expanded to include telephone

wires, reaching to the whole world.” 277 U.S. at 465. Soon, however, the Court

recognized that new communicative technologies required it to untether its

jurisprudence from the once-universally applicable trespass approach.

6

Case 15-1815, Document 45, 01/19/2016, 1686497, Page17 of 40

The Court therefore recognized that just as individuals’ communications

and private information had begun to extend beyond the confines of their

private property, these individuals’ Fourth Amendment protections had to

follow. Katz v. United States reconfigured Fourth Amendment jurisprudence

to focus not on trespass theory, but on a person’s expectation of privacy. 389

U.S. 347, 360-61 (1967) (Harlan, J., concurring). While Katz entailed a new

application of the Fourth Amendment, it fell directly in line with the Framers’

desire to protect people’s privacy, wherever that privacy was expressed.

Courts since Katz have been remarkably effective in confronting

originalist Fourth Amendment principles in light of fast-changing technology.

In Kyllo v. United States, the Supreme Court considered the constitutionality

of an officer’s use of an infrared heat detection device to virtually peer into

someone’s home — even though the device detected only heat emanating from

the home. 533 U.S. 27 (2001). The Court rejected a formalistic reading of

jurisprudence in favor of protecting individuals against the intrusiveness of new

surveillance technology:

We rejected such a mechanical interpretation of the Fourth

Amendment in Katz, where the eavesdropping device picked up

only sound waves that reached the exterior of the phone booth.

Reversing that approach would leave the homeowner at the mercy

of advancing technology — including imaging technology that

could discern all human activity in the home. While the

technology used in the present case was relatively crude, the rule

we adopt must take account of more sophisticated systems that

are already in use or in development.

7

Case 15-1815, Document 45, 01/19/2016, 1686497, Page18 of 40

Id. at 35-36.

In United States v. Jones, the Court recognized that a formalistic

interpretation of the plain view doctrine had to give way to a new jurisprudence

in light of GPS tracking. In that case, the Court held that tracking a driver for

28 days constituted a search, even though the driver was tracked only while on

public streets. 132 S.Ct. 945 (2012).

And in Riley v. California, the Court held that during a search incident to

arrest, officers are permitted to search the contents of a cell phone only if they

obtain a warrant, 134 S.Ct. 2473, because cell phones today “place vast

quantities of personal information literally in the hands of individuals.” Id. at

2485. Thus, Fourth Amendment jurisprudence in the “context of physical

objects” has little “force with respect to digital content on cell phones.” Id. at

2484. The Court clarified that its holding applies to computers as well as cell

phones: “The term ‘cell phone’ is itself misleading shorthand; many of these

devices are in fact minicomputers . . . . One of the most notable distinguishing

features of modern cell phones is their immense storage capacity.” Id. at 2489.

This Court recognized the need for a new application of the Fourth

Amendment in Ganias, remarking that “[a]pplying 18th Century notions about

searches and seizures to modern technology . . . is easier said than done, as we

are asked to measure Government actions taken in the ‘computer age’ against

8

Case 15-1815, Document 45, 01/19/2016, 1686497, Page19 of 40

Fourth Amendment frameworks crafted long before this technology existed.”

755 F.3d at 133 (footnote omitted). Thus, this Court’s “challenge is to adapt

traditional Fourth Amendment concepts to the Government’s modern, more

sophisticated investigative tools.” Id. at 134.

Fourth Amendment jurisprudence, indeed, must meet privacy demands

when the Government asks a magistrate judge for a warrant to search a digital

device or, essentially, the entirety of a target’s life. See Riley, 134 S.Ct. at 2490

(computers become “a digital record of nearly every aspect of [users’] lives —

from the mundane to the intimate.”).

D.

The need for particularity and why it wasn’t met in Ulbricht’s case

“[T]he computer hard drive [is] akin to a residence in terms of the scope

and quantity of private information it may contain.” Galpin, 720 F.3d at 446.

Where, therefore, “the property to be searched is a computer hard drive, the

particularity requirement assumes even greater importance.” Id. The use of

traditional, obsolete particularity statements in the digital context is fraught:

The potential for privacy violations occasioned by an unbridled,

exploratory search of a hard drive is enormous. This threat is

compounded by the nature of digital storage. Where a warrant

authorizes the search of a residence, the physical dimensions of

the evidence sought will naturally impose limitations on where an

officer may pry: an officer could not properly look for a stolen

flat-screen television by rummaging through the suspect’s

medicine cabinet, nor search for false tax documents by viewing

the suspect’s home video collection. Such limitations are largely

absent in the digital realm, where the size or other outwardly

visible characteristics of a file may disclose nothing about its

9

Case 15-1815, Document 45, 01/19/2016, 1686497, Page20 of 40

content.

Id. at 447 (emphasis added). The Tenth Circuit echoed this sentiment:

The modern development of the personal computer and its

ability to store and intermingle a huge array of one’s personal

papers in a single place increases law enforcement’s ability

to conduct a wide-ranging search into a person’s private

affairs, and accordingly makes the particularity requirement

that much more important.

Otero, 563 F.3d at 1132 (cited favorably in Rosa, 626 F.3d at 61-62).

Accordingly, this Court mandates “a heightened sensitivity to the

particularity requirement in the context of digital searches” and, just as in Kyllo

and Jones, has expressed doubt as to the availability of the plain view exception

in the case of digital searches. Galpin, 720 F.3d at 447, 451.

Stating particularity, therefore, cannot be business as usual when it

comes to issuing warrants to search digital data. This Court knows that, but the

magistrate and the District Court in the instant case did not.

The District Court rejected Ulbricht’s particularity claim, countenancing

the government’s seizure of “the entirety of [Ulbricht’s] laptop and data on the

hard drive of that laptop . . . , along with the entirety of the accounts.” (District

Court Docket Entry No. 89, at 29).

The District Court gave Ulbricht’s argument short shrift. But the

warrants permitted a search for virtually anything and everything, including

“any communications or writings by Ulbricht, which may reflect . . .

10

Case 15-1815, Document 45, 01/19/2016, 1686497, Page21 of 40

political/economic views associated with ‘Dread Pirate Roberts’ (e.g., views

associated with the Mises Institute”2; “any evidence concerning Ulbricht’s

travel or patterns of movement”; “any other evidence” implicating Ulbricht in

the subject crimes; and “[a]ny evidence concerning [Ulbricht] relevant to the

investigation of the SUBJECT OFFENSES, including but not limited to . . .

any communications or writings by ULBRICHT; . . . any evidence concerning

ULBRICHT’S travel or patterns of movement.” (Blue Br. 99).

Since “any” means “all,” United States v. Rodriguez, 775 F.3d 533, 537

(2d Cir. 2014) (quoting United States v. Maxwell, 285 F.3d 336, 341 (4th Cir.

2002)), these warrants permitted officers literally to search and seize all of

Ulbricht’s communications, writings, evidence of his movements and travels,

and all evidence that officers executing the search, in their discretion, deemed

relevant. The Tenth Circuit has, appropriately, not countenanced warrants that

permit officers to search for “anything,” because such warrants authorize

precisely the kind of “wide-ranging exploratory searches that the Framers

intended to prohibit.” United States v. Riccardi, 405 F.3d 852, 862 (10th Cir.

2005) (quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987)).

2

The Mises Institute refers to itself as the center of the “Austrian Economics

Movement,” https://mises.org/about-mises, and is a libertarian organization

headquartered in Alabama. It was started with money raised by Senator Ron

Paul. Sam Tanenhaus & Jim Rutenberg, Rand Paul’s Mixed Inheritance, NEW

YORK TIMES, Jan. 25, 2014.

11

Case 15-1815, Document 45, 01/19/2016, 1686497, Page22 of 40

The District Court was profoundly mistaken in concluding that these

warrants provided sufficient particularity to guide the officers who were tasked

with executing them. It heralded its blithe dismissal of Ulbricht’s claim by

proclaiming that because the warrant “identified the laptop and the accounts by

name,” everything in the computer and accounts could be seized. (District Court

Docket Entry No. 89, at 29). This is not the stuff of particularity statements,

but is that of warrants that would authorize what John Adams, James Otis, and

certainly the Riley Court would refer to as “rummag[ing] through homes in an

unrestrained search.” Riley, 134 S.Ct. at 2494.

E.

What must be done in general

As this Court has made clear, formalistic commitment to outdated forms

of particularity statements is not always appropriate to digital search warrants.

More is needed to adapt Fourth Amendment jurisprudence to modern

technology.

The starting point for this inquiry must be an acknowledgement that

warranted digital searches present officers with an unprecedented amount of

digital “papers[ ] and effects,” as the Framers would have put it. U.S. CONST.

amend. IV. The vast majority of these papers and effects will not constitute

evidence of criminality, and most will pertain to private issues such as medical

care, romantic relationships, political views, and so forth. The particularity

12

Case 15-1815, Document 45, 01/19/2016, 1686497, Page23 of 40

requirement cannot be read to permit a magistrate to authorize the search and

seizure of all of these papers and effects.

To be sure, courts have, on occasion, permitted the bulk seizure of

papers and effects that include both materials that are indicative of crime and

those that are not. They permit such searches, however, only where there is

probable cause to believe that criminal activity permeates a business subject to

a search warrant, United States Postal Service v. C.E.C. Servs., 869 F.2d 184,

187 (2d Cir. 1989), and where the permission is based on the impossibility of

making a particularity statement that adequately separates potentially criminal

evidence from benign materials. United States v. Falkowitz, 214 F.Supp.2d 365,

388 (S.D.N.Y. 2002). Fortunately, in the digital context courts have a number

of tools at their disposal to ensure that officers executing warrants have a clear

mandate to perform only a limited, particularized search.

Magistrates have increasingly included pre-search instructions in digital

device warrants. CDT, 621 F.3d at 1168; United States v. Bonner, 2013 WL

3829404, at *19 (S.D. Cal.); In the Matter of the Search of: 3817 W. West End,

First Floor Chicago, Illinois 60621, 321 F.Supp.2d 953, 957 (N.D.Ill. 2004); In

re Appeal of Application for Search Warrant, 71 A.3d 1158 (Vt. 2012); Athul

K. Acharya, Semantic Searches, 63 DUKE L.J. 393, 409 (2013). Other courts favor

the traditional post-search reasonableness analysis. United States v. Burgess,

576 F.3d 1078, 1094 (10th Cir. 2009); United States v. Grimmett, 439 F.3d

13

Case 15-1815, Document 45, 01/19/2016, 1686497, Page24 of 40

1263, 1270 (10th Cir. 2006); State v. Bizewski, 2013 WL 1849282, at *13 (Conn.

Super. Ct.). We argue that pre-search instructions, judiciously applied, play a

vital role in both establishing a particularity statement in a warrant and enabling

a meaningful post-search reasonableness inquiry.

As to pre-search instructions, former Ninth Circuit Chief Judge Alex

Kozinski’s concurring opinion in CDT is instructive. In that opinion, Chief

Judge Kozinski advocated for magistrates’ use of five pre-search instructions.

In CDT, the Ninth Circuit considered the execution of a warrant to search the

digital records of Comprehensive Drug Testing, a facility that administered

tests on hundreds of major league baseball players for steroid use. 621 F.3d at

1166. Although the warrant was based on probable cause to believe that only

ten players had broken the law, “the government seized and promptly reviewed

the drug testing records for hundreds of players in Major League Baseball (and

a great many other people).” Id.

To justify its broad seizure, the government noted in its search warrant

application the “generic hazards of retrieving data that are stored

electronically.” CDT, 621 F.3d at 1168. The magistrate judge therefore

permitted the government to seize virtually all computer equipment found

along with any data storage devices and related materials. Id. The magistrate

did, however, require that the government employ a taint team, or a third party

— not the person or entity in possession of the seized evidence and not the

14

Case 15-1815, Document 45, 01/19/2016, 1686497, Page25 of 40

agents who performed the search or members of the investigatory or

prosecution team — to separate innocuous seized data from incriminating

evidence, pursuant to United States v. Tamura, 694 F.2d 591 (9th Cir. 1982).

CDT, 621 F.3d at 1168; see also Preventive Medicine Associates, Inc. v.

Commonwealth, 465 Mass. 810, 829 (2013).

CDT is different than Ulbricht’s case in one regard: in CDT, the

Government admitted that its agents’ intent was to take all of the digital

evidence “and later on briefly peruse it to see if there was anything above and

beyond that which was authorized for seizure in the initial warrant,” CDT, 621

F.3d at 1171, whereas in Ulbricht’s case the officers could not go beyond the

warrants’ particularity limits because there were no limits.

Judge Kozinski’s response was to offer five pre-search instructions that

magistrates could include in warrants to ensure particularity:

1. Magistrate judges should insist that the government waive

reliance upon the plain view doctrine in digital evidence cases.

2. Segregation and redaction of electronic data must be done

either by specialized personnel or an independent third party. If

the segregation is to be done by government computer personnel,

the government must agree in the warrant application that the

computer personnel will not disclose to the investigators any

information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of

destruction of information as well as prior efforts to seize that

information in other judicial fora.

4. The government’s search protocol must be designed to uncover

15

Case 15-1815, Document 45, 01/19/2016, 1686497, Page26 of 40

only the information for which it has probable cause, and only

that information may be examined by the case agents.

5. The government must destroy or, if the recipient may lawfully

possess it, return non-responsive data, keeping the issuing

magistrate informed about when it has done so and what it has

kept.

Id. at 1180 (Kozinski, CJ., concurring) (citations omitted).

The Vermont Supreme Court has discussed why appropriate use of

these pre-search instructions is vital, observing:

In the digital universe, particular information is not accessed

through corridors and drawers, but through commands and

queries. As a result, in many cases, the only feasible way to specify

a particular ‘region’ of the computer will be by specifying how to

search. We view such ex ante specification as an acceptable way to

determine particularity.

In re Appeal of Application for Search Warrant, 71 A.3d at 1171.

In the digital context, particularity may require use of some or all of

these pre-search instructions. These instructions should be used to ensure that

warrants do what they have always done: prohibit officers from searching

locations they have no probable cause to search. Such instructions ensure

particularity by identifying whether the hardware itself is evidence of a crime,

i.e. contains contraband or is contraband, or is an instrumentality of a crime, or

if the hardware simply stores evidence of a crime. See Fed. R. Crim. P. 41(c);

see also Office of Legal Educ. Exec. Office for United States Attorneys,

Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal

16

Case 15-1815, Document 45, 01/19/2016, 1686497, Page27 of 40

Investigations, Dep’t of Justice: Computer Crime and Intellectual Property

Section, Criminal Division, 63 (2009),

http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. The

warrant should permit the search and seizure of relevant computer files rather

than the digital media itself. It should also identify records that relate to the

particular crime for which officers have probable cause to search, including

specific categories of or types of records to be found. This type of information

can be discerned by, for example, the identity of the target of the search, the

time frame of the crime being investigated, or the actual crime itself, like child

pornography. Id. at 72-73.

The particularity requirements for a warrant to search for digital

evidence should be detailed enough to clearly and unambiguously inform law

enforcement as to what is included and what is not included within the scope

of the approved search. To accomplish that objective, the articulation of the

specific target of the search must utilize the narrowest particulars necessary to

discriminate between what is and is not to be searched.

Take, for example, a search of a personal laptop computer to obtain

evidence of a physician’s alleged illegal distribution of pain medications. The

warrant first must specifically identify the physical address where the computer

is to be found and the location on the premises where it is located. The warrant

must also specify the type of computer to be searched (in this case a specific

17

Case 15-1815, Document 45, 01/19/2016, 1686497, Page28 of 40

make of laptop), and then specify the type and content of digital files to be

searched. Such file types and content would be limited in this example to text

documents in which search queries reveal the presence of the doctor’s DEA

number, names and addresses of patients referenced in the allegedly illegal

prescriptions, and emails to and from those patients. Without more supporting

investigative information, the image files on the computer, other emails, and

personal documents not specific to the doctor’s prescription authority would

be excluded from the warrant to search. Such particularities carve out the scope

of the warranted search from the general population of files stored on the

laptop.

Search protocols should be outlined for how the government plans to

conduct onsite and offsite searches of digital devices, and can be suggested by

government agents when they apply for warrants. Agents should explain how

these protocols will keep their search within the bounds of the warrant. Such

protocols may include the use of a taint team, restrictions on information

sharing between the taint team and law enforcement investigators and

prosecutors, obtaining a warrant when evidence of a separate crime is

legitimately within plain view, the use of search terms, and the use of forensic

software.

Pre-search instructions are vital to meaningful post-search

reasonableness inquiries that every magistrate must perform. After all, with no

18

Case 15-1815, Document 45, 01/19/2016, 1686497, Page29 of 40

pre-search instructions in the digital context, officers will be authorized by the

warrant to perform a virtual basement-to-attic sweep of every nook and cranny

of a computer. If their search is not bounded by pre-search instructions, then

nothing is unreasonable. This certainly cannot be the judiciary’s (non-)response

to new technology.

The Tenth Circuit recognized the inextricable connection between presearch instructions and post-search reasonableness, writing that the provision

of and adherence to the former will contribute greatly to a reasonableness

analysis favorable to the government:

This isn’t to say the Fourth Amendment has nothing to say on how

a computer search should proceed. Even putting aside for the

moment the question what limitations the Fourth Amendment’s

particularity requirement should or should not impose on the

government ex ante, the Amendment’s protection against

“unreasonable” searches surely allows courts to assess the

propriety of the government’s search methods (the how) ex post in

light of the specific circumstances of each case. See, e.g., United

States v. Ramirez, 523 U.S. 65, 71 (1998) (“The general

touchstone of reasonableness . . . governs the method of

execution of the warrant.”); United States v. Angelos, 433 F.3d

738, 746 (10th Cir. 2006). So even if courts do not specify

particular search protocols up front in the warrant application

process, they retain the flexibility to assess the reasonableness of

the search protocols the government actually employed in its

search after the fact, when the case comes to court, and in light of

the totality of the circumstances. Unlike an ex ante warrant

application process in which the government usually appears

alone before generalist judges who are not steeped in the art of

computer forensics, this ex post review comes with the benefit,

too, of the adversarial process where evidence and experts from

both sides can be entertained and examined. See Burgess, 576

F.3d at 1094; United States v. Carey, 172 F.3d 1268, 1275-76

19

Case 15-1815, Document 45, 01/19/2016, 1686497, Page30 of 40

(10th Cir. 1999); Orin S. Kerr, Searches and Seizures in a

Digital World, 119 HARV. L. REV. 531, 574–75 (2005).

United States v. Christie, 717 F.3d 1156, 1166-67 (10th Cir. 2013).

To be sure, case-specific realities will drive which pre-search instructions

a magistrate must include to ensure both particularity and the magistrate’s

ability to perform a meaningful post-search reasonableness analysis. Although

they were originally fashioned as mandates, United States v. Comprehensive

Drug Testing, Inc., 579 F.3d 989, 1006-07 (9th Cir. 2009), Chief Judge

Kozinski’s pre-search instructions became admonitory guidelines that

magistrates should consider and impose as necessary. CDT, 621 F.3d at 1180.

In addition to magistrates’ role in authorizing appropriately limited searches by

use of pre-search instructions, the Government should proactively self-impose

them in warrant applications wherever possible.

In addition to imposing some or all of Chief Judge Kozinski’s five presearch instructions and performing robust traditional post-search

reasonableness inquiries, magistrates might consider a second limitation. They

could require officers to foreswear reliance on the plain view doctrine. This is

important because, surprising at it may seem, the Government’s admission in

CDT that it fully intended to seize evidence beyond the scope of its warrant is

grounded in law.

In Coolidge v. New Hampshire, the Supreme Court first explicitly

20

Case 15-1815, Document 45, 01/19/2016, 1686497, Page31 of 40

established that to rely on the plain view doctrine to seize evidence that was

beyond the scope of a warrant, agents must have arrived at the evidence

inadvertently. 403 U.S. 443, 469-70 (1971). In turn, where “discovery is

anticipated,” agents could not rely on plain view. Id. at 470.

Nearly 20 years later, however, in Horton v. California, the Court

rejected the inadvertence requirement, 496 U.S. 128, 137 (1990), mandating

only that agents come to evidence in plain view lawfully — that is, within the

scope of the warrant — and that the incriminating character of the evidence be

“immediately apparent.” Horton, 496 U.S. at 136. This means that during a

warranted search for evidence of credit card fraud, if agents come across a

folder labeled “kiddiepornpics,” agents may nevertheless perform a detailed

search of the contents of that folder, even if they intend to find evidence of

child pornography and not credit card fraud. See United States v. Kim, 677

F.Supp.2d. 930, 945, 949-50 (S.D. Tex. 2009). This is so because of the general

non-discernibility of digital evidence; a file labeled “kiddiepornpics” could

technically contain evidence of credit card fraud. It does not matter that most

people would think it unreasonable to believe that evidence of credit card fraud

would be hidden in such a folder. In the digital context, the Government would

argue, this means that once a warrant to search digital devices issues, agents

may search the entirety of the devices, even if they are attempting and

expecting to find evidence of any crime (or even any unpopular, but legal,

21

Case 15-1815, Document 45, 01/19/2016, 1686497, Page32 of 40

conduct), whether or not it is set forth in the warrant. This is the very

definition of unbounded rummaging that the Fourth Amendment’s

particularity requirement abhors.

The way to avoid this unbounded rummaging is two-fold. First,

magistrates could require agents to foreswear reliance on plain view, meaning

that if they have a warrant to search for evidence of crime A, they may perform

a search only for evidence of crime A; if they believe they may capture evidence

of crime B, they may not use the technical authorization of the warrant and

Horton to go beyond the search for evidence of crime A; to do so would

constitute an unreasonable, extrajudicial fishing expedition.

Second, foreswearing reliance on plain view does not mean that agents

will be unreasonably hobbled in their good-faith efforts to uncover evidence of

crime A. Agents may certainly search for evidence of crime A in a reasonable

manner, as bounded by the magistrate’s pre-search instructions, and need not

fear losing evidence of crime B should they inadvertently come across it. If they

do unexpectedly uncover evidence of crime B, however, they should

immediately stop the search, freeze the scene, and seek a warrant to search for

evidence of crime B (their warrant to search for evidence of crime A would, of

course, still be in effect).

Courts have suggested that this two-step process is reasonable and may

be necessary to ensure particularity in digital warrants and searches. The

22

Case 15-1815, Document 45, 01/19/2016, 1686497, Page33 of 40

Massachusetts Supreme Judicial Court expressed its concern that

a cursory review of every e-mail undermines the particularity

requirement of the Fourth Amendment and art. 14 [of the U.S.

Constitution], particularly where . . . the cursory review is joined

with the plain view doctrine to enable the Commonwealth to use

against the defendants inculpatory evidence with respect to the

pending indictments that it finds in the emails, even though such

evidence may not actually fit within the scope of the search

warrants obtained.

Preventive Medicine Associates, Inc., 465 Mass. at 831-32. Similarly, Fourth

Amendment scholar Orin Kerr has argued that “computer technologies may

allow warrants that are particular on their face to become general warrants in

practice.” Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 565

(2005). And Paul Ohm has observed that “[c]omputer search warrants are the

closest things to general warrants we have confronted in the history of the

Republic.” Massive Hard Drives, General Warrants, and the Power of Magistrate Judges,

97 VA. L. REV. IN BRIEF 1, 11 (2011).

F. What should have been done in Ulbricht’s case

Ulbricht does not, of course, bear any burden to show how the magistrate

might have drafted a warrant that included an adequate particularity statement;

he only needs to show that the warrant lacked such a statement. Nevertheless,

how the magistrate might have drafted an adequate particularity statement is

not difficult to show, and doing so illustrates why, in the instant case, the

warrants provided no particularity. There are at least five particularized

23

Case 15-1815, Document 45, 01/19/2016, 1686497, Page34 of 40

alternatives to the District Court’s warrant language that demonstrate

practicable approaches to ensuring effective law enforcement and satisfaction

of the constitutional necessity of particularity.

First, the District Court indicated that Ulbricht’s computer was “likely to

contain evidence concerning ULBRICHT relevant to the investigation of the

SUBJECT OFFENSES, including evidence relevant to corroborating the

identification of ULBRICHT as the Silk Road user ‘Dread Pirate Roberts.’”

(Blue Br. 99). Presumably, prior to seeking the warrants at issue, law

enforcement agents had amassed evidence that a certain party was engaged in

online criminal conduct as the Dread Pirate Roberts. Agents would, therefore,

be aware of the particular screen name(s) or online handle(s) that this person

used when operating as the Dread Pirate Roberts. He or she could have gone

by “Dread Pirate Roberts,” “DPR,” “Dread,” and so forth. Any online handle

used by this person would be inevitably stored in that person’s computer, and

subject to a word or term search. The magistrate, therefore, could have

authorized a very broad, but particularized search for documents, texts,

Internet activity, and anything else containing “Dread Pirate Roberts,” “DPR,”

“Dread,” “Pirate,” “Roberts,” and any other relevant word or combination of

words.

Second, the magistrate authorized a search for “any communications or

writings by Ulbricht, which may reflect linguistic patterns or idiosyncrasies

24

Case 15-1815, Document 45, 01/19/2016, 1686497, Page35 of 40

associated with ‘Dread Pirate Roberts’[] or political/economic views associated

with ‘Dread Pirate Roberts.’” (Blue Br. 99). Again, we presume that agents were

familiar with these linguistic patterns and idiosyncrasies prior to seeking the

search warrants, for if they had not been, then this warrant truly would

authorize a fishing expedition without any basis in probable cause. Since agents

were familiar with these patterns and idiosyncrasies, they would have been able

to identify the unique words, phrases, spellings, and so forth associated with

Dread Pirate Roberts. These words, phrases, and spellings are eminently

susceptible to key word and phrase searching on a computer. The magistrate

could have permitted a search only for these idiosyncrasies.

Third, the magistrate authorized a search for “any evidence concerning

Ulbricht’s travel or patterns of movement, to allow comparison with patterns

of online activity of ‘Dread Pirate Roberts’ and any information known about

his location at particular times.” (Blue Br. 99). Here again, agents must have

been aware of the dates that the online Dread Pirate Roberts was travelling or

located in certain places that they wanted to compare against evidence found

on Ulbricht’s computer. The magistrate could have authorized a search only for

files and computer activity associated with these dates and locations. This

would have been easy to do: date-limited searches of hard drives is a routine

process, and if agents were aware of the online Dread Pirate Roberts’ location

in the physical world, it would be by tracing IP addresses, also readily

25

Case 15-1815, Document 45, 01/19/2016, 1686497, Page36 of 40

searchable on Ulbricht’s computer.

Fourth, the magistrate authorized a search for “any other evidence

implicating ULBRICHT in the SUBJECT OFFENSES.” (Blue Br. 99). This

catch-all global authorization is not tied to any evidence agents might have

presented to the magistrate, and thus there is absolutely no probable cause

supporting it. This authorization should simply not have been included.

Fifth, the magistrate did not, but could have required the use of a neutral

taint team to separate the innocuous content of Ulbricht’s laptop and social

media accounts from any incriminating matter that might have been discovered

therein.

CONCLUSION

Digital devices store unprecedented amounts of data, including text

documents, financial records, images, videos, e-books, web search histories,

and other data that touch on virtually every aspect of a user’s life. Without

some cursory inspection, each file can appear to be indistinguishable from any

other file. Simply opening the cover of a laptop will not reveal a box of family

photos next to a medical bill next to an illegal narcotics ledger. The massive

amount of sometimes-indistinguishable data presents new Fourth Amendment

challenges to magistrates who endeavor to provide constitutionally-required

particularity statements in the warrants they issue.

26

Case 15-1815, Document 45, 01/19/2016, 1686497, Page37 of 40

Just as courts have responded to disruptive technology in the past,

courts are now generating new types of particularity statements that ensure

individuals’ privacy and do not hobble law enforcement efforts. Pre-search

instructions and robust post-search reasonableness inquiries connected to those

instructions are the loci of courts’ response.

This Court should adopt that framework in reviewing the adequacy of

digital search warrants by issuing a detailed opinion discussing its view of presearch instructions and requiring lower courts to engage in robust post-search

reasonableness inquiries. This Court should also acknowledge the inextricable

link between imposition of pre-search instructions and the ability to perform

meaningful post-search reasonableness inquiries.

Ulbricht’s specific case is much simpler, because the warrants to search

his digital device and accounts lacked any particularity and the District Court

judge engaged only in a blithe dismissal of his claims, not a genuine post-search

reasonableness analysis. This Court should, therefore, reverse the District

Court’s denial of his motion to suppress, vacate his conviction, and remand to

District Court for a new trial consistent with this Court’s opinion.

27

Case 15-1815, Document 45, 01/19/2016, 1686497, Page38 of 40

Dated: January 19, 2016

Grand Forks, North Dakota

Respectfully submitted,

Steven R. Morrison

Steven R. Morrison

University of North Dakota

School of Law

1526 Robertson Court

Grand Forks, ND 58201

(617) 749-7817

Joel B. Rudin

Law Offices of Joel B. Rudin, P.C.

600 Fifth Avenue, 10th Floor

New York, NY 10020

(212) 752-7600

Attorneys for Amicus Curiae National

Association of Criminal Defense Lawyers

28

Case 15-1815, Document 45, 01/19/2016, 1686497, Page39 of 40

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this brief

complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)

because it was produced using Garamond typeface in 14-point font and

contains 6,895 words, excluding the parts of the brief exempted by Rule

32(a)(7)(B)(iii), according to the word processing system I utilized.

Dated: January 19, 2016

Grand Forks, North Dakota

Steven R. Morrison

Steven R. Morrison

29

Case 15-1815, Document 45, 01/19/2016, 1686497, Page40 of 40

CERTIFICATE OF SERVICE

I hereby certify that on this date a copy of the foregoing was filed

electronically with the Court’s CM/ECF system. Notice of this filing will be

sent by email to all parties by operation of the Court’s electronic filing system.

Parties may access this filing through the Court’s CM/ECF system.

Dated: January 19, 2016

Grand Forks, North Dakota

Steven R. Morrison

Steven R. Morrison

30