DONALD C. RANDOLPH, ESQ., California State Bar Number 62468
RANDOLPH & LEVANAS
1717 Fourth Street, Third Floor
Santa Monica, California 90401
Telephone: (310) 395-7900
Attorneys for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KEVIN DAVID MITNICK, et. al,
Defendants.
Case No. CR 96-881-MRP
NOTICE OF MOTION AND MOTION
TO SUPPRESS EVIDENCE;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION AND
EXHIBITS
DATE: April 5, 1999
TIME: 1:30 p.m.
CTRM: 12
TABLE OF CONTENTS
Page
I. INTRODUCTION 3
II. STATEMENT OF FACTS 4
III. ARGUMENT 9
A. WITH THE GOVERNMENT'S ACQUIESCENCE AND KNOWLEDGE, AND THE INTENT TO
ASSIST THE GOVERNMENT, TSUTOMU SHIMOMURA ACTED AS AN INSTRUMENT OR AGENT OF
THE GOVERNMENT 9
B. THE GOVERNMENT USED SHIMOMURA'S INVOLVEMENT TO CIRCUMVENT THE WARRANT
REQUIREMENT OF 18 U.S.C. § 2511 13
C. INFORMATION FROM ILLEGALLY INTERCEPTED COMMUNICATIONS CANNOT BE USED IN
AN AFFIDAVIT TO SUPPORT PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE,
APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA 15
1. Disclosure of the Illegally Intercepted Communications Violated 18
U.S.C. § 2511; Therefore the Intercepts Cannot Be Used Before Any Court or
Officer. 15
2. The Tainted Evidence Must be Excised From the Affidavit To Support The
Search Warrant. 17
D. THERE WAS NO PROBABLE CAUSE TO SEARCH AFTER THE UNLAWFULLY INTERCEPTED
COMMUNICATIONS AND EVIDENCE DERIVED THEREFROM ARE EXCISED FROM THE
AFFIDAVIT FOR THE SEARCH WARRANT 18
IV. CONCLUSION 22
TABLE OF AUTHORITIES
Page
United States Code
18 U.S.C. § 2511 .................................. 3, 13, 14, 15
18 U.S.C. § 2515 ................................... 1, 3, 16, 22
18 U.S.C. § 2518 ........................................... 1, 4
Cases
United States v. Donovan,
97 S.Ct. 658 (1977) ..................................... 16
United States v. Gelbard,
92 S.Ct. 2357 (1972) ................................ 15, 16
United States v. Attson,
900 F.2d 1427 (9th Cir. 1990) ....................... 10, 13
United States v. Pervaz,
118 F.3d 1 (1st Cir. 1997) ............................. 11
United States v. Vasey,
834 F.2d 782 (9th Cir. 1987) ................ 17, 18, 19, 22
United States v. Walther,
652 F.2d 788 (9th cir. 1981) ..................... 9, 11, 12
United States v. Wanless,
882 F.2d 1459 (9th Cir. 1989) ............... 17, 18, 19, 22
Reports
Senate Report No. 1097,
90th Congress, Second Session (1968) .................... 15
DONALD C. RANDOLPH, ESQ., California State Bar Number 62468
RANDOLPH & LEVANAS
1717 Fourth Street, Third Floor
Santa Monica, California 90401
Telephone: (310) 395-7900
Attorneys for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KEVIN DAVID MITNICK, et. al,
Defendants.
Case No. CR 96-881-MRP
NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION AND EXHIBITS
DATE: April 5, 1999
TIME: 1:30 p.m.
CTRM: 12
TO: ASSISTANT UNITED STATES ATTORNEYS DAVID SCHINDLER AND CHRISTOPHER
PAINTER
PLEASE TAKE NOTICE that on April 5, 1999, at 1:30 p.m., or as soon
thereafter, as the matter may be heard before the Honorable Mariana
Pfaelzer, defendant Kevin Mitnick, by and through his attorney of record,
Donald C. Randolph, will move, and hereby does move, the Court for an order
suppressing evidence seized during the search of 4550 Tournament Drive,
Apartment 202, Players Club Apartments, Raleigh, North Carolina and the
fruits of the same.
This motion is based 18 U.S.C. § 2515 and § 2518(10)(a), upon the records
and files of this case, upon these moving papers including the attached
memorandum of points and authorities and declaration, and upon such oral
and/or documentary evidence as may be presented at the hearing of the
motion. Incorporated in full is the Motion to Suppress based on the U.S.
Constitution and the Fourth Amendment, submitted to this court on the same
day.
DATED: March __, 1999 Respectfully submitted,
RANDOLPH & LEVANAS
By: ____________________
DONALD C. RANDOLPH
Attorneys for Defendant
KEVIN DAVID MITNICK
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
For the reasons set forth herein, all evidence seized in the search of 4550
Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North
Carolina, and the fruits thereof, must be suppressed:
Under 18 U.S.C. § 2511, an electronic communication is illegally
intercepted when a government agent intercepts and/or is provided with the
content of those intercepts without providing the wire or electronic
service with a court order signed by an authorizing judge.
Here, Tsutomu Shimomura and his associate, Andrew Gross, acting as
government agents, illegally intercepted wire communications without such a
court order. The information from these illegal intercepts was used to
provide probable cause in an affidavit supporting the search of 4550
Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North
Carolina.
Under 18 U.S.C. § 2515, no part of the contents of an illegally seized wire
communication may be used in any proceeding before any court or officer of
the United States. This illegally seized evidence was brought before a
magistrate judge in the affidavit presented as evidence of probable cause
to search the apartment. This evidence is tainted by its illegal
interception and must be excised from the affidavit. Without this
information, the affidavit does not provide probable cause to search the
apartment.
As authorized under 18 U.S.C. § 2518(10)(a)(1), the defendant moves to
suppress the wire or oral communications intercepted in violation of
sections 2511 et. seq., and "evidence derived therefrom." Thus, the
defendant moves to suppress all evidence obtained as a result of the
February 15, 1995 search of 4550 Tournament Drive, Apartment 202, Players
Club Apartments, Raleigh, North Carolina, and the fruits of the same,
including any statements made by the Defendant.
II.
STATEMENT OF FACTS 1
On December 25, 1994, Tsutomu Shimomura's computer system at the San Diego
Supercomputer Center (SDSC) was compromised by an unknown intruder via the
internet. In early January, after making a presentation about the break-in
at the Computer Misuse and Anomaly Detection Conference, Shimomura spoke to
Martha Stansell-Gamm, a Justice Department employee in the computer crime
section. (p. 177) She called Shimomura back on January 19, 1995 to let him
know that she had told the FBI to contact him. On January 20th, Shimomura
spoke to Agent Richard Ress of the FBI who assured him that they would do
everything they could to be helpful. Later that day, Andrew Gross,
Shimomura's associate at SDSC, spoke with Agent Levord Burns, the FBI's top
computer crime field agent, filling him in on what had occurred so far. (p.
187)
On January 28, 1995, Shimomura learned that files copied from his computer
system were found stored at the Well, by an unknown intruder. Shimomura
sent Gross to the Well to investigate. After a few days, Shimomura joined
Gross for a meeting with the Well staff, after which he called Agent Burns
to update him on the monitoring of the intruder. (p. 248-249) The next
day, Gross spoke to Kathleen Carson, the local FBI agent working on Kevin
Mitnick's case, to let her know about the activity at the Well. That
afternoon, Shimomura and Gross met with the Well staff, Kent Walker from
the San Francisco U.S. Attorney's office, and two FBI agents, Pat Murphy
and Barry Hatfield. (p. 256) At the meeting, Shimomura outlined what the
strategy should be: "the only way we could secure the Well against the
threat was to go and apprehend it. Instead of a duck-and-cover posture, we
needed to shift into attack mode." (p. 257) According to Shimomura, AUSA
Walker said, "We're going to be serving as legal and administrative backup
for you." (p.264) During the meeting, three vice-presidents from Netcom
called in, pledging their support in any way possible. AUSA Walker and the
FBI agents told the Netcom employees that they would be in touch. (p. 259)
Soon after that, Shimomura moved operations to Netcom, where he met with
Netcom staff, including Robert Hood, the Network Manager. Shimomura "made
it clear that our goal was to locate our quarry as quickly as possible and
keep moving upstream until we pinned him down." (p. 298) Using information
gathered from the interceptions at the Well, Shimomura worked with Robert
Hood to track the intruder. They compared the time of the dropped
connections from the Well to the logout times from Netcom. (p. 301) Using
this information, "it became increasingly obvious that there was a single
account that matched with the log-ins of the trespasser at the Well in each
case." (p. 304). All of the remote direct dial-up access came through
Netcom's dial-up number in Raleigh, North Carolina. Once this was
discovered, Shimomura called Kent Walker to get a trap-and-trace order for
the Raleigh dial-up number. Walker said he would do it first thing the
next morning. (p. 307) The next day, when Shimomura contacted Walke r, he
told Shimomura that the trap-and-trace would be up by the end of the day.
In the mean time, Shimomura and Hood watched the keystrokes of the
intruder, including an on-line conversation with another person.
Later that night, the intruder logged on through the Raleigh number.
Shimomura immediately called Agent Burns, but the trap-and-trace was not
working. Agent Burns told him to call him back if the intruder logged in
again. When he logged in, Shimomura let Agent Burns know. Thirty minutes
later, Agent Burns called back to say they had a successful trace to a
Sprint Cellular phone number. (p. 361)
The next day, Shimomura called AUSA Kent Walker to update him on the
investigation; they arranged to meet later that day. At the meeting with
Walker, Shimomura pressed him to get a trap-and-trace order for Sprint
Cellular in Raleigh, North Carolina. Walker said he could do it. (p. 399)
Shimomura then contacted Kathleen Cunningham, the United States Marshall on
Kevin Mitnick's case to learn more information on how Mitnick operated. (p.
395).
Next, Shimomura called Agent Burns to learn of any follow-up on the traced
phone number. Burns agreed that he could have Shimomura talk directly to
the Sprint technician through a three-way conference call. (p. 391) Using
the information from the Netcom login sessions, Shimomura and the Sprint
technician, James Murphy, attempted to match the Netcom logins to Sprint
calls. (p. 410-413) Through this technique they were able to narrow down
the origin of the calls to within a kilometer. (p. 413) At this point,
Shimomura let Agent Burns know that trace orders were needed for both
Sprint Cellular and Cellular One in Raleigh. (p. 413-414)
The next day, Shimomura flew to Raleigh, North Carolina. While on the
flight, he contacted Agent Burns to find out the status of the trace orders
for Sprint and Cellular One. (p. 417) Once in Raleigh, he was met by the
Sprint technicians who immediately took him to the Sprint Mobile Telephone
Switching Office where they met Lathell Thomas, a local FBI agent. (p.
420) Shimomura worked with the Sprint technicians to try to find any
activity on the phone numbers determined from the Netcom logins.
Shimomura's involvement continued up to the point of the surveillance of
the Player's Club Apartments -- to make the antenna on the van look less
suspicious, he suggested strapping boxes on the roof. (p. 454) He was in
the local AUSA John Bowler's van during the search of Mitnick's apartment.
In his affidavit written in support of the search warrant for Apartment
202, 4550 Tournament Drive, Agent Burns details the findings of Shimomura's
investigations to provide probable cause for the search. (See the
affidavit to the search warrant, at Exhibit A).
The next year, Shimomura wrote a book, Takedown, with John Markoff, a New
York Times reporter, detailing his involvement in the search for and arrest
of Kevin Mitnick. Two years later, his role was still remembered: The
Director of the FBI, Louis Freeh, acknowledged Shimomura's role in a speech
at the International Computer Crime Conference in New York on March 4,
1997: "You may remember when we arrested Mr. Mitnik [sic] a year or so ago.
He was found by the FBI, but he was found because we hired a 23-year-old
computer specialist to locate exactly where he was and where he was
transmitting from. That was the basis of effecting that arrest."
(emphasis added) (See Speech by Louis J. Freeh, Director of the FBI, p. 2,
at Exhibit B)
III.
ARGUMENT
A. WITH THE GOVERNMENT'S ACQUIESCENCE AND KNOWLEDGE, AND THE INTENT TO
ASSIST THE GOVERNMENT, TSUTOMU SHIMOMURA ACTED AS AN INSTRUMENT OR AGENT OF
THE GOVERNMENT
In United States v. Walther, the Ninth Circuit Court of Appeals articulated
the standard for determining when a private party is acting as an
"instrument or agent" of the government. It is a two-part test: "(1) the
government's knowledge and acquiescence [of the challenged conduct], and
(2) the intent of the party performing the search." Walther, 652 F.2d 788,
792 (9th Cir. 1981).
In Walther, an airline employee opened a "Speed Pak" package on the
suspicion that it contained illegal drugs. As a former informant for the
DEA, the employee expected a reward from the DEA upon finding drugs in the
package. In analyzing the two critical factors listed above, the Court
found that the airline employee, in opening the package, was motivated to
help the DEA find illegal drugs, not by a legitimate business
consideration. In addition, even though the DEA had no knowledge of this
particular search before it happened, they had encouraged the employee to
engage in this type of search in the past. Therefore, the airline employee
was found to have been an agent of the government and the fruits of the
illegal search were suppressed.
In United States v. Attson (900 F.2d 1427, 9th Cir. 1990), a
government-employed physician took blood from the defendant in the
emergency room, following a car accident in which the defendant was later
found guilty of manslaughter. The Ninth Circuit found that he was not
acting as a government agent. In its analysis, the court was required "to
gauge whether the party whose actions are challenged intended to assist the
government in activities ("searches or seizures") covered by the fourth
amendment, or whether his motivation was independent of such
consideration." Attson, 900 F.2d at 1432. The court found that the doctor
drew blood from the defendant to determine what type of medicines could be
administered to him. Therefore, his intent was not to assist the
government in its investigation, but for an independent purpose.
In a more recent case in the First Circuit Court of Appeals, United States
v.Pervaz, one of the issues decided by the Court was whether or not the
employees of Cellular One of Boston were acting as government agents while
tracking a cloned cellular phone. There, an FBI Agent had notified the
employees of potential fraud, but was not aware of any follow-up action
taken by the employees. The motivation of the employees was that
"customers were being defrauded." Pervaz, 118 F.3d 1 (1st Cir. 1997).
Thus, in following the Ninth Circuit's test from Walther and Attson, the
court found the employees were not government agents.
Here, unlike in Pervaz, Tsutomu Shimomura was not an employee of the
cellular phone companies. He was in direct, almost daily, contact with the
FBI throughout the investigation. Following the standard laid out in
Walther, Shimomura's conduct throughout the investigation was that of a
government agent. From the very beginning of his tracking of Mitnick from
different computer systems and internet providers, Shimomura was in contact
with the FBI. The FBI was fully aware and supportive of Shimomura's in
volvement. The government's "knowledge and acquiescence" is illustrated by
a statement to Shimomura by Kent Walker of the United States Attorney's
office in San Francisco, given at a meeting with Shimomura, the Well staff,
and two FBI agents: "We're going to be serving as legal and administrative
backup for you." (p.264) From that point on, the government maintained
contact with Shimomura, with information flowing between the him and the
FBI, including Shimomura advising the government where "trap-and-trace"
orders were needed. Shimomura was a crucial part, if not the leader, of
the FBI's investigation. Without Shimomura's assistance and knowledge, the
government would not have been able to track Mr. Mitnick down. Shimomura
even came up with the idea of how to disguise the antenna on the
surveillance van in Raleigh. (p. 454).
Additionally, Shimomura had no valid purpose except to help the FBI catch
Mr. Mitnick. From very early on in the investigation, Shimomura's goal was
to apprehend the "threat" to the Well. Rather than work in a defensive
mode, he wanted to be in "attack mode." (p.257) Once he moved operations
to Netcom, Shimomura explained the mission to the Netcom staff -- to locate
and "pin down" their quarry.(p. 298) While Shimomura often expressed
impatience with the way the FBI operated, he included himself in the
investigatory team: "We had Mitnick, and could track him down immediately.
But the longer we took to pull things together, the more likely something
was to go wrong." (p. 426) Shimomura's only goal was to see Mr. Mitnick
arrested.
The facts here are even stronger than those in Walther. In Walther, even
though the DEA agents hadn't encouraged the airline employee to conduct
that particular search, the employee was still found the be acting as a
government agent. Here, the government did nothing but encourage Shimomura
to track down Mr. Mitnick. The actions of the doctor in Attson were not
covered under the Fourth Amendment because his intent was to treat the
patient, not to assist in the investigation of the case. Here, clearly,
Shimomura's purpose was to assist, if not lead, the FBI in their
investigation into Mr. Mitnick's whereabouts. Following the Ninth
Circuit's test, Shimomura was acting as an agent of the government
throughout this investigation.
B. THE GOVERNMENT USED SHIMOMURA'S INVOLVEMENT TO CIRCUMVENT THE WARRANT
REQUIREMENT OF 18 U.S.C. § 2511
18 U.S.C. § 2511 (2)(a)(ii) authorizes employees of a provider of wire or
electronic communication "to provide information, facilities, or technical
assistance to persons authorized by law to intercept wire, oral or
electronic communications..." (emphasis added). To be authorized by law,
the provider must have been given a "court order directing such assistance
signed by the authorizing judge" (§ 2511 (2)(a)(ii)(A)). The guidelines
for obtaining judicial approval are very stringent, as laid out in 18
U.S.C. §§ 2516 and 2518 (1) - (8).
The key to Shimomura's tracking Mr. Mitnick was his ability to view the
alleged intruder's actions on the systems of the Well and Netcom, two
internet service providers. Shimomura's actions at these sights were at
the approval and acquiescence of the government. Under 18 U.S.C. § 2511
(2)(a)(i), employees of a wire communication provider may monitor suspected
fraudulent activity; however, under § 2511 (2)(a)(ii), for a government
agent to monitor such communications or to be provided with the information
from the communications, a court order is required. The government cannot
circumvent the warrant requirements of the statute by falsely claiming that
Shimomura was not a government agent, but merely working for the various
internet providers. The Director of the FBI, Louis Freeh, even
acknowledged Shimomura's role in a speech at the International Computer
Crime Conference in New York on March 4, 1997:
"You may remember when we arrested Mr. Mitnik [sic] a year or so ago. He
was found by the FBI, but he was found because we hired a 23-year-old
computer specialist to locate exactly where he was and where he was
transmitting from. That was the basis of effecting that arrest."
(emphasis added) (See Speech by Louis J. Freeh, Director of the FBI, p. 2,
at Exhibit A).
All of the facts point to the same conclusion - that Shimomura was acting
as an agent of the government. Therefore, any interceptions of wire
communications that he viewed should only have been viewed after a warrant
was obtained. The government cannot be allowed to circumvent a warrant
requirement by having private citizens gather information for them in
violation of 18 U.S.C. §§ 2511 et. seq.
C. INFORMATION FROM ILLEGALLY INTERCEPTED COMMUNICATIONS CANNOT BE USED IN
AN AFFIDAVIT TO SUPPORT PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE,
APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA
1. Disclosure of the Illegally Intercepted Communications Violated 18
U.S.C. § 2511; Therefore the Intercepts Cannot Be Used Before Any Court or
Officer.
Congress created 18 U.S.C. §§ 2511 et. seq. for the dual purpose of "(1)
protecting the privacy of wire and oral communications, and (2) delineating
on a uniform basis the circumstances and conditions under which the
interception of wire and oral communications may be authorized." United
States v. Gelbard, 92 S.Ct. 2357, 2361 (1972), quoting Sen. Rep. No. 1097,
90th Cong., 2d Sess., 66 (1968) and U.S. Code Cong. & Admin. News,, p.
2153.
Central to this legislative scheme of protecting privacy interests is
Section 2515:
[w]henever any wire or oral communication has been intercepted, no part of
the contents of such communication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other proceeding in or
before any court, . . .officer, . . . or other authority of the United
States . . . if the disclosure of that information would be in violation of
this chapter.
(emphasis added). "What disclosures are forbidden, and are subject to
motions to suppress, is in turn governed by s. 2518 (10)(a) which provides
for suppression of the evidence on the grounds that 'the communication was
unlawfully intercepted. . .'" United States v. Donovan, 97 S.Ct. 658, 670
(1977). In addition, the Court in Gelbard explains that Section 2515 also
ensures that "the courts do not become partners to illegal conduct" Gelbard
at 2363. In Gelbard, two parties were placed in contempt of court for
refusing to answer questions as grand jury witnesses until they were
afforded an opportunity to challenge the legality of the interceptions of
certain conversations. The Supreme Court held that Section 2515 allowed
this refusal to testify before the grand jury because the disclosure of
contents of the illegal intercept would undermine the intent of Congress,
as well as make the Court a party to the unlawful act.
It follows that, in order to avoid making the court a partner of illegal
conduct, the Court would also apply Section 2515 to the use of unlawfully
intercepted communications in an affidavit to support probable cause for a
search. A Magistrate Judge who a uthorizes a search relies on the
affidavit as providing untainted information. Where a magistrate
authorized a search based on tainted information gathered illegally, the
court became a partner to that illegal conduct.
2. The Tainted Evidence Must be Excised From the Affidavit To Support The
Search Warrant.
"It is now fundamental that evidence which is obtained as a direct result
of an illegal search and seizure may not be used to establish probable
cause for a subsequent search." United States v. Wanless, 882 F.2d 1459,
1465 (9th Cir. 1989), citing United States v. Vasey, 834 F.2d 782, 788 (9th
Cir. 1987). The evidence gathered in the unlawful intercepts by Shimomura,
acting as a government agent without a warrant, should not have been used
in the affidavit to support the search of 4550 Tournament Drive,
Apartment 202, Raleigh, North Carolina. Because this evidence made up the
bulk of the affidavit, the Magistrate Judge improperly relied on it in
determining there was probable cause to search that apartment.
All of the evidence gathered by Shimomura and his associate, Andrew Gross,
during these illegal intercepts was tainted and should not have been
included in the affidavit for the search warrant. However, "[t]he mere
inclusion of tainted evidence in an affidavit does not, by itself, taint
the warrant or the evidence seized pursuant to the warrant." United States
v. Vasey, 834 F.2d 783, 788 (9th Cir. 1987) Rather, "[a] reviewing court
should excise the tainted evidence and determine whether the remaining u
ntainted evidence would provide a neutral magistrate with probable cause to
issue a warrant." Id.
D. THERE WAS NO PROBABLE CAUSE TO SEARCH AFTER THE UNLAWFULLY INTERCEPTED
COMMUNICATIONS AND EVIDENCE DERIVED THEREFROM ARE EXCISED FROM THE
AFFIDAVIT FOR THE SEARCH WARRANT
In Wanless, the Court held that investigatory searches based on evidence
seized during an illegal inventory search were also illegal. Officers
impounded the vehicles belonging to the defendants because there was no one
present to drive them off the freeway. Before the vehicles were impounded,
inventory searches were conducted, during which evidence of drugs and drug
manufacturing was found. However, as an inventory search is done for the
protection of the owner of the vehicle, he must first give his co nsent to
search. This was not done, thus the Court held that the first searches
were illegal. Investigatory searches of the cars, which can only be done
if there is probable cause, were done partly based on the illegally seized
evidence from the invento ry searches. Without the illegally seized
evidence, "the evidence [was] far too scanty to establish probable cause
for an investigative search of the two vehicles." Wanless, 882 F.2d at
1465.
In Vasey, the police had obtained a warrant to search a vehicle based in
part on illegally seized evidence. The Court excluded the illegally seized
evidence from the warrant and found that without it, the evidence was
"insufficient to establish probable cause." Vasey, 834 F.2d at 788.
Here, as in both Wanless and Vasey, after the information about the
unlawfully intercepted communications, and the evidence derived therefrom,
is excised from the warrant, there is no longer probable cause to support
the search of 4550 Tournament Drive, Apartment 202, Players Club
Apartments, Raleigh, North Carolina.
The majority of the information in Agent Burns' affidavit was gathered
through the illegal intercepts. (See the affidavit to the search warrant,
at Exhibit A). Beginning with paragraph three on page two of the
affidavit, Agent Burns describes information from Mr. Gross obtained from
intercepts at the Well, an internet service provider. These intercepts
consisted not only of monitoring the alleged intruder's activities, but
also of actually reading the content of the files that were transferred
into an allegedly compromised account. Paragraph four discusses the
content of the files. Paragraph five discusses the origination of most of
the intercepted communication. In paragraph six, Agent Burns describes an
actual copy of an intercepted session that was provided to him from Gross.
Paragraph seven again describes the content of the some of the intercepted
files.
Paragraph eight describes information given to Agent Burns from Robert
Hood, the Network Manager for Netcom. Hood told Agent Burns that the
alleged intruder had used a local dialup number multiple times in Raleigh,
North Carolina. Hood learned this information by intercepting the
intruder's communications. However, there was never a court order allowing
Netcom to give this information to the government or a government agent
without violating 18 U.S.C. 2511.
Paragraphs nine and ten describe information gained from Sprint Cellular
and Cellular One in North Carolina. This information was gained through
the use of "trap-and-trace" orders. However, the instruction to set
trap-and-trace orders on these lines came from Shimomura, who used the
unlawful intercepts to determine where the trap-and-trace orders were
needed. In addition, at the end of paragraph 10, there is again a
reference to Netcom providing information from the intercepted
communication to the government without a court order: "Robert Hood,
Netcom, advised the affiant that all login sessions relating to paragraphs
9 & 10 passed through the account of gkremen."(See affidavit to the search
warrant, page 5, at Exhibit A).
Some of the most telltale evidence that the information in the affidavit
was obtained without proper court authority comes from statements in the
affidavit itself. In particular, in paragraph 11, Agent Burns describes
how Netcom provided logging information from the intercepted communications
directly to Shimomura, who then used this information to track the alleged
intruder to Raleigh, North Carolina. This unlawfully intercepted
information was used to compare Netcom's records to Sprint Cellular's
records to determine that the calls made on the Sprint phone were indeed
the same calls made to Netcom. In paragraph 12, Joseph Orsack of Sprint
Cellular indicated that he was able to narrow the area from which the
cellular phone calls to Netcom originated, based on the same information
provided by Netcom.
In addition, in paragraph 14, Agent Burns states that "Records obtained
from Robert Hood, Netcom, indicate that computer hacking sessions took
place as a direct result of the cellular hacker activities referenced in
paragraphs 9 & 10." (See affidavit to search warrant, pages 7-8, at Exhibit
A). Agent Burns then goes on to list several of the illegally intercepted
communications as the basis for probable cause to search an apartment at
the Player's Club apartment in Raleigh.
Once all of the references to the unlawful interceptions and evidence
derived therefrom are excised from the affidavit, the only paragraphs
remaining are one, two, and thirteen. Paragraphs one and thirteen describe
Agent Burns' experience. Paragraph two describes the break-in to
Shimomura's computer system, which was the impetus for his involvement in
the FBI's investigation and has never been connected to Mr. Mitnick. As in
Wanless and Vasey, what is left after the tainted information is excised
from the afficavit is certainly not sufficient to establish probable cause
to search the apartment.
IV.
CONCLUSION
The information from the unlawfully intercepted communications should not
have been used in the affidavit to support the search on February 15, 1995
of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh,
North Carolina. Without the excised portions of the affidavit, there was
no probable cause to support the search of the apartment. Therefore, all
of the evidence obtained in this illegal search, and the fruits thereof,
should be suppressed by the Court under 18 U.S.C. § 2515.
DATED: March ___, 1999 Respectfully submitted,
RANDOLPH & LEVANAS
By: ____________________
DONALD C. RANDOLPH
Attorneys for Defendant
KEVIN DAVID MITNICK
DECLARATION OF TAMATHA RICHARDSON SCHREINERT
I, Tamatha Richardson Schreinert, hereby state and declare as follows:
1. I am at attorney at law licensed to practice in all the courts of the
State of California. I am an associate in the law firm of Randolph &
Levanas, attorneys of record for defendant Kevin David Mitnick.
2. I have reviewed Tsutomu Shimomura's account of the search for and
seizure of Kevin David Mitnick in Takedown, by John Markof and Tsutomu
Shimomura. Upon review of Mr. Shimomura's statements in the book, I
believe the facts contained in the Memorandum of Points and Authorities to
be true.
3. Mr. Shimomura will be subpoenaed to testify at the hearing on this
matter, scheduled for April 5, 1999 at 1:30 p.m., Courtroom 12. (See
attached copy of Subpoena at page 24a).
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 15th day of March, 1999, at Los Angeles, California.
_____________________________
TAMATHA RICHARDSON SCHREINERT
1 All page numbers are in reference to Takedown, by Tsutomu Shimomura and
John Markoff, published in 1996, written about the pursuit and capture of
Kevin Mitnick.
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