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; DECLARATIONS OF KEVIN D. MITNICK AND GREGORY L. VINSON; AND EXHIBITS DATE: March 22, 1999 TIME: 1:30 p.m. CTRM: 12 TO: ASSISTANT UNITED STATES ATTORNEYS DAVID SCHINDLER AND CHRISTOPHER PAINTER PLEASE TAKE NOTICE that on March 22, 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 5227 Brooklyn Avenue, N.E., Apartment Unit 1, Seattle, Washington and the fruits of the same. This motion is based 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. DATED: March __, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________ DONALD C. RANDOLPH Attorneys for Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Considering the totality of circumstances, the affidavit offered in support of the search warrant for apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington is devoid of all probable cause because there was no corroboration whatsoever by law enforcement of any information in the citizen informant's affidavit. (See October 27, 1994 Search Warrant and Affidavit for Search Warrant attached as Exhibit A). Further, the affidavit is devoid of probable cause to believe that evidence of a crime could be found at that location when the search was executed on October 27, 1994. In addition, the warrant is invalid because it was both lacking in particularity and was unconstitutionally overbroad. In light of this, all evidence obtained as a result of the October 27, 1994 search of the apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington, and the fruits of the same must be suppressed. II. STATEMENT OF FACTS1 On October 27, 1994, apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington was searched by the Seattle Police Department and the Secret Service. At the time of the search, the authorities searching the premises had no firsthand knowledge of what might be in the apartment or what had allegedly happened in the apartment. The search was based on an affidavit written by private citizen Todd Young, a security consultant hired by McCaw Cellular Telephone company in Kirkland Washington. Mr. Young was contacted by Kevin Pazaski, a fraud analyst at McCaw Cellular Telephone company, to assist him in an investigation of a high volume of local and interstate phone calls originating on several cellular phone numbers. Mr. Young and Mr. Pazaski, both private citizens, proceeded to investigate the origin of these cellular phone calls. Their investigation consisted of tracking the origin of the cellular phone calls, monitoring the content of the calls, and general surveillance. Before contacting Mr. Young, Mr. Pazaski had determined the cell sites and sectors from which the allegedly fraudulent calls were originating. The source of origin was narrowed down to an area 15 blocks wide and three blocks deep, the intersection of cell site #04, Sector "A" and cell site #06, Sector "C." On October 7, 1994, Mr. Young and Mr. Pazaski traveled to this area with Radio Direction Finding (RDF) equipment consisting of a radio receiver, a TSR CellScope device, and a directional antenna to determine the origin of the radio transmission. The Cell Scope receiver was programed to trap any calls made by the suspect mobile numbers by programming in their MIN/ESN access codes. Once a call was trapped, the signal strength of the radio transmission was measured from different locations to determine the point at which the directions of origin intersect. The intersection was the point of origin of the mobile calls. By driving while monitoring the direction and strength of the signal from the trapped call, Mr. Young and Mr. Pazaski were able to determine the calls were originating from the apartment complex at 5227 Brooklyn Avenue, N.E. Mr. Young exited the vehicle and inspected the apartment buildings on foot. As he walked to the door of apartment unit number one, he could hear a voice speaking as if in a phone conversation. Mr. Young recognized the voice as the same one he had been monitoring on the CellScope. Over the next three weeks, Mr. Young and Mr. Pazaski continued to monitor the calls originating out of apartment unit number one at 5227 Brooklyn Avenue, N.E. During their investigations, they observed the resident of that apartment leaving the premises talking on a cellular phone or carrying a bag large enough for a cellular phone and a laptop computer. Throughout their three week investigation, they were not assisted in any way by the Seattle Police Department or other law enforcement agencies. Finally, on October 26, 1994, Mr. Young contacted Mr. Ivan Orton, the Senior Deputy Prosecuting Attorney with the Fraud Division of the King County Prosecuting Attorney's Office. Mr. Young provided Mr. Orton with an affidavit detailing his expertise and giving a statement of facts. This affidavit was then attached to the Application for a Search Warrant which was presented to a judge the next day, October 27, 1994. The search warrant, based entirely on a private citizen's affidavit, was issued and the search was carried out the same day, October 27, 1994. The affidavit and search warrant do not indicate any follow-up investigation by the King County Prosecutor's Office after Mr. Orton received the information about Mr. Young's investigation. There wa s no independent corroboration of any of the facts laid out in the affidavit. In fact, until the actual search, there was no law enforcement involvement in any portion of the investigation, only private citizens. Included in the Search Warrant issued on October 27, 1994, is a list of the property to be seized. (See Search Warrant, pp. 1-2, at Exhibit A) Among the other items listed are the following: "computers and any software contained therein" and "Computer Software, computer chips, computer circuit boards, computer chip programmers or 'E-Prom burners.'" There are no qualifying or limiting notations pertaining to these items. Also listed are "...personal electronic or hand written organizers or phone dire ctories, scheduling calendars;" and "Records reflecting the rental of any safety deposit box or mail box, and any keys to safety deposit or mail boxes." There is no mention of any of these items in the supporting affidavit. At the time the search was carried out, the occupant of the apartment was not present. (See Inventory and Return of Search Warrant attached at Exhibit B). After searching the apartment and seizing property, a copy of the search warrant and receipt of it ems taken was left in the apartment for the resident. III. ARGUMENT A. STANDING Under the Fourth and Fourteenth Amendments to the United States Constitution, a defendant may challenge the admission of evidence seized during an invalid search when the government's actions invade a defendant's reasonable expectation of privacy. See Rak as v. Illinois, 439 U.S. 128 (1978). For the purposes of standing, Mr. Mitnick has averred that apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington and its contents were subject to his control and ownership. Mr. Mitnick had a re asonable expectation of privacy to be free of unreasonable searches and seizures of his residence and property. Therefore, he has standing to contest the lawfulness of the seizure at issue. (See Declaration of Kevin David Mitnick). B. THE AFFIDAVIT ON ITS FACE FAILS TO PROVIDE PROBABLE CAUSE TO SEARCH THE APARTMENT UNIT NUMBER ONE OF 5527 BROOKLYN AVENUE, NE IN SEATTLE, WASHINGTON. 1. An Affidavit in Support of a Search Warrant Must Set Forth Probable Cause A search of a residence can be made only pursuant to a warrant issued by a judicial officer upon a showing of probable cause. U.S. Constitution, Amendment IV. The affidavit in support of the search warrant must establish that a crime was committed, and that there is probable cause to believe that the items sought to be seized are located at the place for which the search warrant is issued. See generally Illinois v. Gates, 103 S.Ct. 2317 (1983). If the government cannot justify the search, the Fourth A mendment requires exclusion of the "fruits" of the search. Wong Sun v. United States, 371 U.S. 471, 488 (1963). When an affidavit is based upon the word of an informant, the magistrate or judge is to consider the informant's reliability and the basis of his or her knowledge. Gates, 103 S. Ct. at 2332. Additionally, an informant's statements should be reasonably c orroborated by other matters within the officer's knowledge. Gates 103 S.Ct. 2334. Corroboration of key facts with law enforcement is one of the crucial ways to determine reliability of an informant. See United States v. Roberts, 747 F.2d 537, 544 (9th Cir. 1984) (search held reasonable when informant's tip was corroborated by independent police work). In the instant case, the magistrate clearly relied solely on the investigation of a private citizen, Mr. Todd Young, as laid out in Mr. Young's affidavit attached to the search warrant. Probable cause may be based on information from a private citizen wh ere the determination of reliability is based on the combination of the nature of the information provided, the informant's opportunity to see or hear the information, and verification by the police. See U.S. v. Salas, 879 F.2d 530 (9th Cir. 1989) cert. denied, 493 U.S. 979 (1989); U.S. v. Angulo-Lopez, 791 F.2d 1394 (9th Cir. 1986); and U.S. v. Gagnon, 635 F.2d 766 (10th Cir. 1981), cert. denied, 451 U.S. 1018 (1981). In Salas, the informants, a hotel manager and a maid, had observed cocaine and materials for packaging narcotics in the defendant's hotel room. This observation was "corroborated by the personal observations of the officers" and was therefore deemed rel iable enough to establish probable cause. Salas, 879 F.2d at 536. In Angulo-Lopez, police corroborated the citizen informants' statements about drug trafficking by conducting surveillance operations on several occasions. The police viewed the exchange o f packages or objects at a parking lot, which, when viewed in conjunction with the citizen informants' statements, established probable cause. Angulo-Lopez 791 F.2d at 1398. In Gagnon, while hunting, a private citizen accidently discovered a large newly -built barn. The informant managed to take a handful of the contents of the barn (green leafy substance) to the authorities. The police conducted tests on the substance, determined that it was indeed marijuana, and obtained a search warrant based on thi s corroboration of the informant's information. See Gagnon 635 F.2d at 767-68. Here, unlike in the above cases, there was no independent investigation at all to determine the validity of any part of Mr. Young's affidavit, even though this was highly technical information obtained using technical equipment. The magistrate clearly re lied solely on the investigation of a private citizen, Mr. Todd Young, as there was no corroboration of any part of his affidavit by the police or other law enforcement officials. It is apparent that Young presented his affidavit to Mr. Orton, the Senior Deputy Prosecuting Attorney with the Fraud Division, who accepted it in his entirety without a shred of corroboration. There are numerous things that Mr. Orton could have instructed the police to do, including: * verify the identity of the occupant of the apartment, the nature and length of the occupant's lease, including when the lease began, and whether a description of the rightful occupant of the apartment conforms with the description given by the citizen informant; * check on the background of Mr. Young to verify his expertise, including that he has indeed worked with law enforcement to investigate the fraudulent use of cellular phones; * check on the background of Mr. Pazaski to verify his expertise. It should be noted that Mr. Pasaski did not sign the affidavit although he provided information to Mr. Young that required expertise; * speak to the appropriate persons at McCaw Cellular Telephone Company to verify the allegation of the unusually high volume of local and interstate phone calls originating from specific cellular phone numbers; * speak to the appropriate persons at McCaw Cellular Telephone Company to verify the allegation of customer complaints regarding unknown phone calls appearing on their bills; * speak to any of the alleged victims of cellular fraud; * * verify the origination of the alleged fraudulent cellular phone use; or * examine the equipment used by Mr. Young and Mr. Pazaski in their surveillance and investigation. These are only a few examples of how there could have been corroboration of this citizen informant's affidavit. There was, however, no corroboration or verification whatsoever. The search of the apartment was authorized solely on the word of a private c itizen. Police corroboration of a citizen informant's information is a key factor in determining if there is probable case to issue a warrant. See Salas, Angulo-Lopez, and Gagnon, supra. Here, where there was no corroboration whatsoever, the search war rant is facially invalid ,and all items seized from the search of apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington and the fruits thereof must be suppressed. 2. There was Insufficient Probable Cause to Establish that Evidence of a Crime Would be Found at Apartment Unit Number One of 5227 Brooklyn Avenue, NE in Seattle, Washington. It has been said that "probable cause exits when, considering the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991) quoting U.S. v. Rodgriquez, 869 F.2d 479, 484 (9th Cir.1989). The affidavit must explain the significance or relevance of searching a particular location: It is critical to a showing of probable cause that the affidavit state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises searched. United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988)(emphasis added). In Hove, the ex-husband of the defendant had found pipe bombs planted under his car and had received threatening letters, composed out of words cut out of a magazine. The detective investigated and found connections to Ms. Hove, the defendant, and the criminal activity. He learned she was staying at several different residences and tracked her down using a phone number. He went to this residence and observed a car that had belonged to Ms. Hove in the parking lot, as well as other items linking her to the residence. However, the detective negligently failed to describe these facts in the affidavit attached to the search warrant. As such, the Court found that the affidavit lacked "any indicia of probable cause" to connect the location searched with the incriminating evidence and the defendant. Id. Therefore, the Court held that any belief in the existence of probable cause was unreasonable, and the evidence obtained in the search must be suppressed. Here there was nothing in the affidavit to indicate that, if the occupant was not at home, there would be evidence of a crime present. A fair reading of the affidavit describes a situation where the implements of the alleged crimes were portable and were often on the occupant's person as he left the apartment: Traditional law enforcement methods have relied largely on using land-line phone traces to track a hacker's phone calls to the particular landline [sic] subscriber connection (at a particular street address). This method cannot be applied to cellular telephones because the hacker's connection is "wireless" and the hacker himself can be mobile. The hacker can use a portable laptop computer and a portable cellular telephone to conduct operations for any location where cellular service is available. See Affidavit to Search Warrant, p. 3 (emphasis added),at Exhibit A. At 18:24, I observed the subject, described earlier, exit from apartment #1. . . . He was carrying a portable handheld cellular telephone . . . Id. at 13 (emphasis added). At 22:47 I again established a surveillance position outside of the subject's apartment. At 22:50, I observed the subject leave the apartment and walk south on Brooklyn. He again had the cellular phone in his hand. Id. (emphasis added). He has been seen carrying a [sic] athletic duffel bag, black, green and purple in color. This duffel bag was large enough to carry a lap-top computer and cellular phone which might be used by the subject to conduct hacking activities from any other locat ion. He has been seen carrying a handheld portable cellular phone. Id. at 15 (emphasis added). If the occupant was not home, there is nothing in the affidavit to suggest that evidence of a crime would be found at apartment unit number one of 5227 Brooklyn Avenue, NE. Since the officials carrying out the search warrant searched the apartment when t he occupant was not present, there was a high probability that key items would not be present. Additionally, there are no allegations that, given the nature of the alleged offenses, the items to be seized would typically be maintained in an apartment, a s opposed to on the person. Therefore, the affidavit fails to support probable cause to believe that evidence of a crime would be found at the time of the search. As such, all evidence obtained during the search on October 27, 1994 and its fruits must b e suppressed. C. THE WARRANT IS LACKING IN SUFFICIENT SPECIFICITY, THEREFORE REQUIRING THE SUPPRESSION OF CERTAIN ITEMS SEIZED. The constitutional mandate of particularity in the description of the place to be searched is aimed primarily at protecting the privacy interest of citizens against the unfocused discretion of law enforcement officers. Andresen v. Maryland, 427 U.S. 463 (1976). "To determine whether a warrant lacks specificity, we must examine both the warrant's particularity and it's breadth." U.S. v. Kow, 58, F.3d 423, 426 (9th Cir. 1995) citing In re Grand Jury Subpoenas, 926 F.2d 847, 857 (9th Cir. 1991). 1. A Warrant Must Describe with Particularity the Items to be Searched and Seized. In Kow, HK Video was suspected of tax evasion, tax fraud and corporate skimming. Pursuant to a warrant issued by a magistrate judge, FBI Agents "seized essentially all of the business records, computer hardware and software, files, ledgers, and invoices " Id. at 425. The warrant basically described every document and item present in HK Video. The Court held that "by failing to describe with any particularity the items to be seized, the warrant is indistinguishable from the general warrants repeatedly held by this court to be unconstitutional." Id. at 427. The Ninth Circuit Court of Appeals distinguished Kow in U.S. v. Lacy (119 F.3d 742, 9th Cir. 1997). In Lacy, the Court upheld the seizure of an entire computer system because the affidavit in Lacy "established probable cause to believe Lacy's entire comp uter system was 'likely to evidence criminal activity'" Id. at 746 (emphasis added). However, the Court goes to explain that while in Kow there were no limits on the seizure, the Lacy warrant "contained objective limits to help officers determine which items they could seize -- allowing seizure of only documents linked to BAMSE [a computer bulletin board system] for example." Id. Here, there were no objective limitations placed on the search relating to the seizure of the any computer and computer software. The search warrant directed the seizure of "computers and any software contained therein" and "Computer Software, computer chips, computer circuit boards, computer chip programmers or 'E-Prom burners'" without any limitation to criminal or fraudulent activity. Because of this lack of particularity, many things were seized that were personal in nature that had no relation wha tsoever to alleged criminal activity. "Generic classifications in a warrant are acceptable only when a more precise description is not possible." Kow at 427, quoting U.S. v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982). As in Kow, the government could hav e made more particular listings of what type of computer software, for example, was related to the alleged criminal activity. Since they did not, the categories "computers and any software contained therein" and "Computer Software, computer chips, comput er circuit boards, computer chip programmers or 'E-Prom burners'" should be excised from the warrant, and any items seized in these categories suppressed for lack of particularity. 2. The Scope of the Search Authorized by the Warrant was Overbroad. In Kow, the Court held that "despite its length and complexity, [Special Agent] Gordon's affidavit did not establish the probable cause required to justify the widespread seizure of documents authorized in this case." Kow at 427. Widespread seizure of d ocuments is allowed when the affidavit establishes that the business was permeated with fraud. In Kow, this was not the case. In fact, the affiant himself stated that "HK Video 'is a legitimate business'" Id. at 428, admitting that not all activities, and therefore, documents, will be proof of criminal activity. In In re Grand Jury Investigation Concerning Solid State Devices, Inc. et al., v. U.S., (130 F.3d 853 (9th Cir. 1997), companies who supplied semiconductors to the government petitioned for the return of property that was seized in an investigation of al leged fraud. The Court found invalid a warrant that authorized a broad seizure of documents and data, yet made no reference to any illegal acts or statutes that had been allegedly violated. The Court held that the "warrants executed against [the compani es] were exceptionally broad in scope" (Id. at 856) and that the affidavit only supplied probable cause for a more limited search. Therefore, the Court held that the search had been illegal and ordered the seized property returned to the companies. Here, the search of apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington was overly broad in that there were items listed and seized that had no basis of probable cause from the supporting affidavit. In particular, one category of items listed is never mentioned in the supporting affidavit as having any nexus to alleged criminal activity: "...personal electronic or hand written organizers or phone directories, scheduling calendars." It follows that since these items are never me ntioned in the affidavit, there was no probable case to search and seize them. In addition, there was never any allegation in the affidavit of generalized criminal activity occurring in the apartment, allowing the seizure of all items found. By listing this category, the warrant exceeds the scope of probable cause and is thus overbroad. Therefore, the category "...personal electronic or hand written organizers or phone directories, scheduling calendars" should be excised from the warrant and any items seized in this category suppressed as there was no probable cause to support their seizure. D. THE LEON EXCEPTION TO THE EXCLUSIONARY RULE DOES NOT APPLY IN THE ABSENCE OF GOOD FAITH If the warrant is unsupported by probable case and no reasonably trained officer could have believed otherwise, the evidence seized pursuant to the warrant is inadmissable. See, United States v. Leon, 104 S.Ct. 3405, 3422 (1984). That is, suppression mu st be ordered if the warrant was "based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 3421. Such circumstances indicate an absence of good faith and make appropriate t he exclusion of illegally obtained evidence. Id. The fact that the magistrate signed the warrant cannot be the basis of the officers's good faith. The affiant's own training and experience are irrelevant to determining the issue of good faith and whet her the good faith exception to the exclusionary rule applies. See Id. at 3419, n. 20. The determination must be made on the basis of whether a reasonably well-trained officer in this position would have know that the affidavit failed to establish proba ble cause. See, United States v. Weber, 923 F.2d 1338 (9th Cir. 1990). In U.S. v. Leake (998 F.2d 1359, 6th Cir. 1993), the detective received information from a citizen informant about seeing bales of marijuana inside a house. The detective's two nights of surveillance revealed nothing unusual occurring at the location, y et he still presented an affidavit with this information. The court determined that the affidavit was not based on probable cause because the affiant, Detective Murphy, had not sufficiently corroborated the informant's statement. The court held that the good faith exception in Leon did not apply as the Detective could not have relied in good faith on the affidavit because he knew there had not been enough corroboration. Id. at 1367. Likewise, in Hove, even though the officer had corroborated his information through investigation, he failed to describe any the corroboration in the affidavit. Therefore, the affidavit did not explain any connection between the residence searched and th e defendant and the criminal activity. "When the officers have not presented a colorable showing [of probable cause], and the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply." Hove, 848 F. 2d at 140 . In the instant case, the officers conducting the search could see from the warrant and affidavit that there had been no corroboration of the citizen informant's statements whatsoever. The information in the affidavit of the citizen informant, Mr. Todd Yo ung, is insufficient to establish probable cause by itself. Without some verification by law enforcement, no officer could in good faith rely on the affidavit attached to the warrant as establishing probable cause. In addition, the warrant was lacking in particularity and unconstitutionally overbroad, thereby making reasonable reliance impossible. The law enforcement officials who searched the apartment had to have known as they conducted the search that there was both no limit to the search and seizure of the computer and computer software, as well as no basis for seizing personal calendars. IV. CONCLUSION For all the reasons stated above, there was no probable cause for the search on October 27, 1994 of apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington. Therefore, all of the evidence obtained in the illegal search, as well as th e fruits thereof, should be suppressed by the Court. DATED: March ___, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________ DONALD C. RANDOLPH Attorneys for Defendant KEVIN DAVID MITNICK DECLARATION OF KEVIN DAVID MITNICK I, Kevin David Mitnick, hereby state and declare as follows: 1. I am the defendant in United States v. Kevin Mitnick, et al., CR 96-881-MRP. Pursuant to Simmons v. United States, 390 U.S. 377 (1968), I make this declaration only in support of my motion to suppress results of the search of apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington and for no other purpose. 2. On or about October 27, 1994 I resided at apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington. 3. On October 27, 1994, apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington was searched by law enforcement officials. 4. I was not present during the search of the apartment and the seizure of my property on October 27, 1994. I declare under penalty of perjury that the foregoing is true and correct. DATED: March ___, 1999 ________________________ KEVIN DAVID MITNICK DECLARATION OF GREGORY L. VINSON I, GREGORY L. VINSON, declare as follows: 1. I am at attorney at law licensed to practice in all the courts of the State of California, I am a member in good standing of the bar of this Court, and I am an associate at the law firm of Randolph & Levanas, attorneys of record for defendant Kevin David Mitnick. 2. I have reviewed portions of the discovery that was obtained from the computer seized in the search of apartment unit number one of 5227 Brooklyn Avenue, NE in Seattle, Washington. Some of this evidence is included in the government's tentative exhibit list. 3. Portions of the discovery provided are personal correspondence and e-mail correspondence. I declare under penalty of perjury that the foregoing is true and correct. DATED: March ___, 1999 ________________________ GREGORY VINSON 1 Unless otherwise indicated, all facts are set forth in the affidavit in support of the search warrant (Exhibit A). 19