PAGE 1. DEFENDANT RYAN PAYNE’S MOTION TO SUPPRESS DROPBOX EVIDENCE

Lisa Hay

Federal Public Defender

Rich Federico

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123 Telephone

(503) 326-5524 Facsimile

Lisa_Hay@fd.org

Rich_Federico@fd.org

Attorneys for Defendant Ryan Payne

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

RYAN PAYNE,

Defendant.

Case No. 3:16-cr-00051-BR

DEFENDANT RYAN PAYNE’S 

MOTION TO SUPPRESS 

DROPBOX EVIDENCE

Pursuant to Fed. R. Crim. P. 12(b)(3)(C), defendant Ryan Payne, through Federal Public 

Defender Lisa Hay and Assistant Federal Public Defender Rich Federico, respectfully moves this 

Court to suppress all evidence obtained from the government’s illegal search of a Dropbox account

associated with Mr. Payne. The warrant authorizing the search and seizure violated the 

particularity requirement of the Fourth Amendment. The warrant was also issued by a magistrate 

judge in the District of Nevada to search and seize information located in San Francisco, 

California, in violation of Fed. R. Crim. P. 41 and 28 U.S.C. § 636(a). Suppression is required of 

all evidence obtained or derived from the Dropbox account associated with Mr. Payne. 

RELIEF REQUESTED: That the Court suppress any and all evidence obtained from the 

search of the Dropbox account associated with Ryan Payne, including any and all evidence derived 

therefrom.

Case 3:16-cr-00051-BR Document 863 Filed 07/11/16 Page 1 of 10
PAGE 2. DEFENDANT RYAN PAYNE’S MOTION TO SUPPRESS DROPBOX EVIDENCE

CERTIFICATION OF CONFERRAL: Defense counsel conferred with Assistant United 

States Attorney Geoffrey Barrow regarding this motion. The government opposes the requested 

relief.

STATEMENT OF FACTS

Dropbox, Inc. is an online file hosting service that allows individuals or businesses to store 

digital files on remote servers, synchronize those files to multiple computing devices so that the 

same files appear on all devices, and share those files with other individuals or businesses. 

Dropbox, Inc. is based in San Francisco, California, and the company advertises itself as follows: 

“Get to all your files from anywhere, on any device, and share them with anyone.” Dropbox 

“About Us,” https://www.dropbox.com (accessed July 9, 2016). This motion to suppress relates to 

a warrant that the Federal Bureau of Investigations obtained from a Magistrate Judge in the District 

of Nevada to search and seize any and all files “associated with Dropbox User No. 328858080 

(Online Account to Be Searched) associated with Ryan Payne.”

On March 31, 2016, the FBI submitted an Affidavit of Joel P. Willis in Support of an 

Application for a Search Warrant to the Hon. Nancy J. Koppe, Magistrate Judge of the United 

States District Court for the District of Nevada (“Nevada Warrant”).

1 The affidavit and its 

attachments sought “any messages, records, files, logs, or information that have been deleted but 

are still available to Dropbox,” including “all documents, digital files, audio files, images, and 

videos,” from the Dropbox account. The warrant that issued authorized the government to search 

 1 The Affidavit of Joel P. Willis in Support of an Application for a Search Warrant, the 

Search and Seizure Warrant, and the Return of Service are hereby filed Under Seal and 

incorporated as Exhibit 1 to this motion. These documents are under seal in the District of Nevada. 

The government has not provided the defense with a copy of the Application for Warrant, if one 

exists apart from the Affidavit of Joel P. Willis. The defense reserves the right to supplement this 

motion upon receipt of any Application.

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PAGE 3. DEFENDANT RYAN PAYNE’S MOTION TO SUPPRESS DROPBOX EVIDENCE

and seize information associated with Dropbox Account No. 328858080, which was described as 

being stored at the premises owned, maintained, controlled, or operated by Dropbox, Inc. at 185 

Berry Street, Suite 400, San Francisco, California.

The warrant ostensibly targeted information related to Mr. Payne’s involvement in an 

“armed standoff” in Nevada in April of 2014 and subsequent involvement in a protest at the 

Malheur National Wildlife Refuge. The warrant also sought evidence that Mr. Payne was planning 

“additional actions against law enforcement and the federal government” with individuals 

associated with the group Operation Mutual Defense (“OMD”). See Ex. 1, Affidavit in Support of 

Warrant at p. 29. Attachment B, Section III of the warrant listed twelve categories of items to be 

seized. See Ex. 1, Search Warrant, Attachment B at pp. 38-40. Despite listing those twelve 

categories, the plain language of the warrant authorized the FBI to obtain from Dropbox and search 

through the entirety of the account associated with Mr. Payne without limitation. See Ex. 1, Search 

Warrant, Attachment B at pp. 37-38. The warrant likewise required Dropbox to provide the 

government with information on who accessed any Dropbox content, how it was accessed, and 

when it was accessed, among other information. The warrant failed to establish a search protocol 

governing how relevant data would be sorted from irrelevant data or how investigating agents

would be screened from irrelevant data. 

The warrant was executed on April 1, 2016, and the FBI acquired all information associated 

with Dropbox Account No. 328858080 associated with Ryan Payne from August 18, 2014 to the 

present (including any data that had been deleted but was still accessible). The government has 

indicated in conversations with defense counsel that it intends to offer evidence obtained from 

Dropbox against Mr. Payne at trial, including audio, video, and other written information.

Case 3:16-cr-00051-BR Document 863 Filed 07/11/16 Page 3 of 10
PAGE 4. DEFENDANT RYAN PAYNE’S MOTION TO SUPPRESS DROPBOX EVIDENCE

ARGUMENT

The Government’s search of Mr. Payne’s Dropbox account violated the Fourth 

Amendment. The warrant on which the search was based lacked sufficient particularity and failed 

to control and limit what information agents obtained and which agents and prosecutors accessed 

irrelevant data. The warrant also exceeded the jurisdictional powers of magistrate judges under

Fed. R. Crim. P. 41 and 28 U.S.C. § 636(a), which confine a magistrate judge’s authority to issue 

a search warrant solely to a location within the judicial district itself, with minor exceptions not 

applicable to the present scenario. The Court should suppress any and all information seized 

through the Dropbox warrant—and any investigative fruits derived therefrom.

I. The Dropbox Warrant Violated the Fourth Amendment’s Particularity 

Requirement.

2

The Fourth Amendment requires that warrants “particularly describe[e] the place to be 

searched, and the persons or things to be seized.” U.S. Const., Amend. IV. Compelling an entity 

such as Dropbox to turn over an individual’s digital documents, messages, audio files, and video 

files triggers the Fourth Amendment’s protections. See, e.g., Riley v. California, 134 S.Ct. 2473, 

2493 (2014) (rejecting Fourth Amendment analysis that would distinguish between digital and 

physical property); United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc) (noting 

Fourth Amendment applies to digital form of “papers”). The “clear and precise words” of the 

Fourth Amendment “reflect the determination of those who wrote the Bill of Rights that the people 

of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from 

intrusion and seizure by officers acting under the unbridled authority of a general warrant.” 

 2 There is significant overlap between the defects which appear in the Dropbox warrant 

and the defects detailed in Docket No. 711, Ryan Payne’s Motion to Suppress Facebook Evidence 

(6/15/16). The arguments made in Docket No. 711 are incorporated herein by reference.

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Stanford v. State of Texas, 379 U.S. 476, 481 (1965). It is the particularity requirement that is 

supposed to provide protection against general warrants, Maryland v. Garrison, 480 U.S. 79, 84 

(1987), by prohibiting “general, exploratory rummaging in a person’s belongings.” Coolidge v. 

New Hampshire, 403 U.S. 443, 467 (1971).

The Dropbox warrant in this case failed to state with any meaningful particularity which 

of the account’s contents were subject to search and how only relevant contents would be seized—

making the warrant itself akin to a general warrant and the process created by the warrant akin to 

the “seize first, search second” methodology rejected as unreasonable in In re [REDACTED]

@gmail.com, 62 F. Supp. 3d 1100, 1102 (N.D. Cal. May 9, 2014). The manner in which the 

government proposed to search was to compel Dropbox to provide the entirety of the account’s 

contents from August 2014 to the present (but potentially including material created before August 

2014) to the government, and then to allow the government search the accounts for items relating 

to specified criminal activity without any particular search protocol authorized in advance by the 

Court. Similar procedures have been rejected: 

[This procedure] is best analogized to a warrant asking the post office to provide 

copies of all mail ever sent by or delivered to a certain address so that the 

government can open and read all the mail to find out whether it constitutes fruits, 

evidence or instrumentality of a crime. The Fourth Amendment would not allow 

such a warrant and should therefore not permit a similarly overly broad warrant just 

because the information sought is in electronic form rather than on paper.

In the Matter of Applications for Search Warrants for Information Associated with Target Email 

Accounts/Skype 9 Accounts, 2013 WL 4647554 at *8 (D. Kan. 2013); see also In the Matter of the 

Search of Information Associated with [redacted] @mac.com that is Stored at Premises 

Controlled by Apple, Inc., 25 F.Supp.3d 1 (D.D.C. 2014) (“having an electronic communication 

service provider perform a search, using a methodology based on search terms such as date stamps, 

specific words, names of recipients, or other methodology suggested by the government and 

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PAGE 6. DEFENDANT RYAN PAYNE’S MOTION TO SUPPRESS DROPBOX EVIDENCE

approved by the Court seems to be the only way to enforce the particularity requirement 

commanded by the Fourth Amendment.”).

The Fourth Amendment violation resulting from the search and seizure of Mr. Payne’s 

Dropbox account is particularly egregious because the warrant imposed no requirement on the 

government to follow any screening protocol in order to prevent the exposure to the government 

of the entire content of Mr. Payne’s Dropbox account, no matter how personal or how unrelated 

that content might be to the allegations at issue in this case. Cf. U.S. v. Comprehensive Drug 

Testing, Inc., 621 F.3d 1162, 1180 (9th Cir. 2010) (en banc) (“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.”) (concurring opinion of Kozinski, 

C.J.) (citations omitted). The Dropbox warrant simply allowed agents to rummage through the 

entirety of Mr. Payne’s Dropbox account and then either return, destroy, or seal whatever evidence 

was deemed unrelated. See Attachment B, p. 40.3 Based on these legal principles and the facts to 

be further adduced at a hearing, the Court should suppress all content obtained through the 

unconstitutional mechanism of the Dropbox warrant.

II. The Dropbox Warrant Violated Rule 41 and 28 U.S.C. § 636(a).4

The issuance of the Dropbox warrant violated the jurisdictional limits of Fed. R. Crim. P. 

41 and 28 U.S.C. § 636(a) by permitting Nevada agents to conduct a search in San Francisco, 

 3 As in Doc. 711, the defense reserves the right to brief additional issues related to the 

Dropbox warrant following an evidentiary hearing on the search and seizure.

4 The same arguments made against the Facebook warrants in Doc. 710, Defendant Ryan 

Payne’s Motion to Suppress Facebook Evidence (6/15/16) apply to the Dropbox warrant at issue 

here. Those arguments are incorporated herein by reference.

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California. Rule 41 does not permit a magistrate judge in Nevada to authorize the search of 

property located in California. Instead, Rule 41 cabins a magistrate judge’s authority to issue a 

warrant to five specific circumstances, none of which is present here. Therefore, the warrant is 

unlawful. See In re Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp. 2d 

753, 757 (S.D. Tex. 2013) (hereinafter “In re Warrant”) (“Under the Government's theory, because 

its agents need not leave the district to obtain and view the information gathered from the Target 

Computer, the information effectively becomes ‘property located within the district.’ This 

rationale does not withstand scrutiny.”); United States v. Levin, — F. Supp. 3d —, 2016 WL 

2596010, at *15 n. 13 (D. Mass. May 5, 2016) (invalidating NIT warrants issued by a magistrate 

judge for software to be implanted in computers in an unknown location outside of the state). 

Similar to Rule 41, the Federal Magistrate Act generally limits the reach of a magistrate

judge’s orders to the territory in which the magistrate sits. 28 U.S.C. § 636 (outlining the 

geographical scope of a magistrate judge’s power: (1) “within the district in which sessions are 

held by the [district] court that appointed the magistrate judge,” (2) “at other places where that 

[district] court may function,” and (3) “elsewhere as authorized by law”); see also Krueger, 809 

F.3d at 1118 (Gorsuch, J., concurring) (emphasizing that a violation of Rule 41(b)’s territorial 

limitations also implicates the statutory limitation of Section 636).

In response to Mr. Payne’s suppression motion regarding a similarly defective warrant for 

emails, the government argued that 18 U.S.C. § 2703 authorized the Nevada Magistrate Judge to 

issue warrants for material stored in California. The defense expects the government to raise a 

similar argument here. Section 2703 does indeed allow the government to seek warrants from 

“courts of competent jurisdiction” commanding providers of electronic communications or remote 

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PAGE 8. DEFENDANT RYAN PAYNE’S MOTION TO SUPPRESS DROPBOX EVIDENCE

computing services to disclose “the contents of wire or electronic communication[s].”5 18 U.S.C. 

§ 2711(3)(A) defines “court of competent jurisdiction” as “any district court of the United States 

(including a magistrate judge of such court)” but also requires the issuing court to have 

“jurisdiction over the offense being investigated.” Magistrate judges may not preside over the trial 

of felony criminal cases. 28 U.S.C. § 636(a)(3). And, while district court judges may designate 

magistrate judges to handle certain pretrial matters under 28 U.S.C. § 636(b), upon information 

and belief there was no such order in place at the time the Drobox warrant was sought or issued. 

See Ex. 1, Search Warrant, Attachment B at 37 (felonies alleged). The clear jurisdictional confines 

of Rule 41 and Section 636(a) govern, and the warrant was issued beyond the geographical 

limitations of the magistrate judge’s authority. Because the Dropbox warrant was issued without 

appropriate jurisdictional authority, it is void ab initio. See, e.g., United States v. Krueger, 809 

F.3d 1109, 1126 (10th Cir. 2015) (Gorsuch, J., concurring) (“The government asks us to resolve 

but one question, bold as it is: whether a warrant issued in defiance of positive law's jurisdictional 

limitations on a magistrate judge's powers remains a warrant for Fourth Amendment purposes. 

I would not hesitate to answer that question put to us and reply that a warrant like that is no warrant 

at all.”).

As this Court is aware, the exclusionary rule is properly applied to cases involving

“deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic 

negligence.” Herring v. United States, 129 S. Ct 695, 702 (2009). When the government violates 

Rule 41 and Section 636 and the defendant is prejudiced by that violation, the remedy is to suppress 

all evidence resulting from the illegality. See United States v. Burgos-Montes, 786 F.3d 92, 109 

 5 The defense does not concede that digital files stored in Mr. Payne’s Dropbox account 

constitute wire or electronic communications. The defense reserves the right to explore this issue 

at an evidentiary hearing where Dropbox employees may be examined.

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(1st Cir.), cert. denied, 136 S. Ct. 599 (2015); United States v. Schoenheit, 856 F.2d 74, 76–77 (8th 

Cir. 1988); United States v. Burke, 517 F.2d 377, 386–87 (2d Cir. 1975) (reasoning that rule 

violations should only lead to suppression where “(1) there was prejudice in the sense that the 

search might not have occurred or would not have been so abrasive if the Rule had been followed

or (2) there is evidence of an intentional and deliberate disregard” for the rule by the government); 

see also United States v. Radlick, 581 F.2d 225, 228 (9th Cir. 1978) (same). Mr. Payne is 

prejudiced by the violation due to the intentional and deliberate disregard for the jurisdictional 

limitations of Rule 41 and Section 636(a). In addition, the exclusionary rule reaches not only 

primary evidence obtained as a direct result of an illegal search or seizure, see Weeks v. United 

States, 232 U.S. 383 (1914), but also evidence later discovered and found to be derivative of an 

illegality, or “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341 (1939). All

fruits gained from the Dropbox warrant are now poisonous and must be suppressed.

III. The Good Faith Exception Does Not Apply Because the Warrants Were

Void Ab Initio.

A good faith exception to an otherwise unlawful search and seizure may apply if the 

executing officers act in objectively reasonable reliance on the warrant’s validity. See United 

States v. Leon, 468 U.S. 897 (1984). The Supreme Court observed that “[r]easonable minds 

frequently may differ on the question whether a particular affidavit establishes probable cause, and 

we have thus concluded that the preference for warrants is most appropriately effectuated by 

according great deference to a magistrate judge’s determination.” Id. at 914 (internal quotation

marks and citations omitted). However, Leon does not extend the same deference when magistrate 

judges determine their own jurisdiction. See Levin, 2016 WL 2596010, at *10. In other words, the 

Leon good faith exception has been applied to warrants invalidated for lack of probable cause but 

not to warrants void for lack of jurisdiction. Id. at *10, n.17 (collecting cases where courts have 

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held that when a warrant is issued without jurisdiction, there is no need to conduct a good faith 

analysis). To apply the good faith exception to these facts would collapse the distinction between 

“judicial error”—where mistakes of sufficiency or misunderstanding statutory requirements might 

warrant a good faith exception if the public interest outweighs the violation—and “judicial 

authority”—where a judge acts outside of his or her authority altogether. Id. at *12.

CONCLUSION

The Dropbox warrant at issue in this motion authorized the government to obtain and 

rummage through the entirety of a Dropbox account associated with Mr. Payne, seizing

information ostensibly related to the crimes he was suspected of having committed. The search 

and seizure of Mr. Payne’s Dropbox account was overbroad and violated the particularity 

requirement of the Fourth Amendment. In addition, the warrant was issued by a magistrate judge 

without the jurisdictional authority to allow the government to search and seize material stored 

and controlled by a company in California and was, therefore, void ab initio. Mr. Payne 

respectfully requests that the Court suppress all of the evidence obtained through or derived from 

the illegal search and seizure of his Dropbox account.

Respectfully submitted this 11th day of July, 2016.

Rich Federico

Assistant Federal Public Defender

Lisa Hay

Federal Public Defender

Attorneys for Defendant Ryan Payne

Case 3:16-cr-00051-BR Document 863 Filed 07/11/16 Page 10 of 10