PAGE 1. DEFENDANT PAYNE’S MOTION TO SUPPRESS SEIZED EMAILS 

Lisa Hay, OSB # 980628 

Federal Public Defender 

Rich Federico, IN Bar #23818-89 

Assistant Federal Public Defender 

101 S.W. 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 

PORTLAND DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

RYAN PAYNE, 

Defendant. 

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

DEFENDANT PAYNE’S MOTION 

TO SUPPRESS SEIZED EMAILS 

Mr. Payne respectfully requests that the Court suppress all emails obtained from Google 

by the government, from accounts RyPayne1@gmail.com and operationmutualaid1@gmail.com, 

on the grounds that the warrant by which the emails were obtained was overly broad and in 

violation of the particularity requirement of the Fourth Amendment. In addition, the warrant was 

issued in violation of the territorial limits in Rule 41 of the Federal Rules of Criminal Procedure. 

For each of these reasons, the evidence obtained from the searches and any fruits thereof must be 

suppressed. 

Case 3:16-cr-00051-BR Document 711 Filed 06/15/16 Page 1 of 7
PAGE 2. DEFENDANT PAYNE’S MOTION TO SUPPRESS SEIZED EMAILS 

Co-counsel who do not have standing to challenge these seized email accounts nevertheless 

join this motion on the legal issues and ask for leave to file a factual statement of similarly situated 

accounts after resolution of this motion, if relevant.1 Counsel conferred with the government and 

the government opposes this motion. 

FACTUAL BACKGROUND 

The search warrant compels Google to copy and provide to the government, “for the period 

January 2013 to the present,” the entire content of the contested email accounts, including draft 

emails that were never sent; all information stored by the user; calendars; contact lists; and images. 

(See Exhibit A, pp. 6-7 (GB.000084-85)). While another section of the warrant purports to limit 

what may be “searched and seized” by the government (see Exhibit A, pp. 38-39 (GB.000116-

117)), the warrant places no limitation by content or otherwise on the government’s ability to 

examine every single email. The application for the warrant was submitted June 5, 2014 (see

Exhibit A, p. 42 (GB.000120)). 

The search warrant was issued by a magistrate judge in the District of Nevada. The warrant 

identifies the property to be searched as located in the State of California. (Exhibit A, p. 6, 

(GB.000084)). 

ARGUMENT 

A. Violation of Fourth Amendment Specificity and Particularity Requirements.

The Fourth Amendment provides that “[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be 

 1

 Mr. Payne’s counsel also request leave to supplement the record with other related 

accounts if they are later identified. 

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PAGE 3. DEFENDANT PAYNE’S MOTION TO SUPPRESS SEIZED EMAILS 

violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, 

and particularly describing the place to be searched, and the persons or things to be seized.” U.S. 

Const., Amend. IV. Compelling an entity such as Google to turn over an individual’s emails 

triggers the protections afforded to that individual by the Fourth Amendment. See United States v. 

Warshak, 631 F.3d 266, 285-88 (6th Cir. 2010) (reasonable expectation of privacy in emails); 

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.” Stanford v. State 

of Texas, 379 U.S. 476, 481 (1965). A principal protection against general warrants is the 

particularly requirement of the Fourth Amendment. Maryland v. Garrison, 480 U.S. 79, 84 (1987). 

This requirement protects against general warrants by prohibiting “general, exploratory 

rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). 

The warrant in this case presents the issues of the application of the particularity 

requirement and of the prohibition against general or overly broad warrants in the context of the 

seizure and search of email accounts. The constitutional implications of wholesale searching of 

email accounts were well-recognized at the time the application for this warrant was submitted. 

See generally Nicole Friess, When Rummaging Goes Digital: Fourth Amendment Particularity 

and Stored E-mail Surveillance, 90 Nebraska L. Rev. 971 (2012). Indeed, in a published opinion, 

a magistrate judge within the Ninth Circuit had rejected as unreasonable the “seize first, search 

second” methodology proposed in this application. In re [REDACTED]@gmail.com, 62 F.Supp.3d 

1100, 1102 (N.D. Cal. 2014). Similar opinions had been widely publicized in the media. See, e.g., 

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Low Level Federal Judges Balking At Law Enforcement Requests For Electronic Evidence, The 

Washington Post, April 24, 2014 (Referring To The “Magistrates’ Revolt” against unconstitutional 

government applications for electronic data). 

The manner in which the government proposed to search email accounts for evidence of 

alleged criminal activity was to compel Google to provide the entire content of the accounts, from 

January 2013 to the present, to the government, and then to have 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 soundly 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, No. 13-MJ-8163-JPO, 2013 WL 4647554, at *8 (D. Kan. Aug. 27, 

2013). The government chose the broadest possible method—seize everything—instead of 

submitting an application that met the particularity and specificity requirements of the Fourth 

Amendment. 

Other methods to perform a constitutional search exist. “[H]aving 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 approved by the Court seems to be the only way to enforce the particularity 

requirement commanded by the Fourth Amendment.” In the Matter of the Search of Information 

Associated with [redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., 25 

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PAGE 5. DEFENDANT PAYNE’S MOTION TO SUPPRESS SEIZED EMAILS 

F.Supp.3d 1 (D.D.C. 2014); see also In re [REDACTED]@gmail.com, 62 F.Supp.3d at 1104 (“The 

court is ... unpersuaded that the particular seize first, search second proposed here is reasonable in 

the Fourth Amendment sense of the word.”). 

The Fourth Amendment violation resulting from the seizure of Mr. Payne’s email accounts 

here is particularly egregious because the warrant imposed no requirement on the government to 

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

entire content of Mr. Payne’s email accounts, no matter how personal and how unrelated 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). 

Instead, the warrant refers to unnamed “government-authorized persons” who will review 

the seized evidence and determine whether it falls within the scope of the warrant. (Exhibit A, p. 

35 (GB.000112)). There is no provision for a wall between these “government-authorized persons” 

and the investigation team, no limit on how the “government-authorized persons” can disseminate 

the information they obtain, and no requirement that non-responsive information be destroyed. 

The search thus exceeded any limitation in the warrant. See, e.g., United States v. Sedaghaty, 728 

F.3d 885, 913 (9th Cir. 2013) (federal agents exceeded scope of a warrant authorizing seizure of 

documents relating to suspected tax fraud when they searched computer for evidence that 

defendant financially supported terrorist groups). For each of these reasons, the application and 

warrant are overbroad and the search occurred in violation of the Fourth Amendment. 

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The defense relies on the attached opinion of U.S. Magistrate Judge Facciola for further 

explication of the technological, legal, and constitutional issues at stake (see Exhibit B). Because 

the specific legal arguments will depend on the facts of this case, the defense requests permission 

to submit additional briefing after an evidentiary hearing, where the defense will seek to establish: 

1. Whether the information provided by Google was indeed limited to information 

created in January 2013 or later as required by the warrant, or if, for example, email strings that 

pre-dated January 2013 or contacts or photographs that were added before January 2013 were 

provided to the government; 

2. The names of the “government-authorized persons” who reviewed Mr. Payne’s 

emails and whether these persons were part of or communicated substantively with the 

investigating team in any way; 

3. Any later access by the government to the content of emails not seized during the 

initial review; and 

4. Other relevant facts as become evident during the hearing. 

Based on these legal principles and the facts to be further adduced at the hearing, the Court 

should suppress all emails obtained from the unconstitutional warrants. 

B. Violation of Rule 41 Territorial Limits.

Rule 41(b) of the Federal Rules of Criminal Procedure sets out five alternative territorial 

limits on a magistrate judge's authority to issue a warrant. The government's application, approved 

by a Magistrate Judge in Nevada, does not satisfy any of them. The rule’s first subsection allows 

a “magistrate judge with authority in the district . . . to issue a warrant to search for and seize a 

person or property located within the district.” Fed. R. Crim. P. 41(b)(1). The government’s 

application states on its face that the property is “stored at the premises owned, maintained, 

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PAGE 7. DEFENDANT PAYNE’S MOTION TO SUPPRESS SEIZED EMAILS 

controlled, or operated by Google, Inc., 1600 Amphitheatre Parkway, Mountain View, California 

94043.” (Exhibit A, p. 6, GB.00084). This property is not within the District of Nevada, where the 

court that issued the warrant sits. On this basis alone, the evidence obtained under the warrant must 

be suppressed. See United States v. Levin, — F. Supp. 3d —, 2016 WL 2596010, at *5 (D. Mass., 

May 5, 2016) (voiding a warrant under Rule 41(b) to search a computer in Massachusetts because 

it was issued by a magistrate in E.D. Va.); United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 

(9th Cir. 1992) (fundamental violations of Rule 41 require suppression).This argument is further 

developed in Mr. Payne’s companion motion to suppress evidence obtained from Facebook and is 

incorporated here by reference. 

CONCLUSION

For each of the foregoing reasons, the email evidence obtained from the unconstitutional 

warrants must be suppressed. An additional hearing may be required in order to determine what 

use the government made of the emails and whether that use resulted in evidence that should also 

be suppressed. 

Respectfully submitted this 15th day of June, 2016. 

/s/ Lisa Hay 

Lisa Hay 

Federal Public Defender 

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