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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IN THE MATTER OF THE SEARCH OF
INFORMATION ASSOCIATED WITH
EMAIL ADDRESSES STORED AT
PREMISES CONTROLLED BY THE
MICROSOFT CORPORATION

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Case No. 16-MJ-8036

MEMORANDUM AND ORDER
On March 4, 2016, the government submitted to Magistrate Judge David J. Waxse an
Application and Affidavit in Support of a Search Warrant to search three email accounts hosted by
Microsoft (“Hotmail Accounts”). The government suspects these Hotmail Accounts are being used to
further criminal activity. On March 29, 2016, Judge Waxse issued a Memorandum and Order Denying
Application for Search Warrant (the “Order”) (Doc. 2).
In denying the government’s application, Judge Waxse concluded the warrant did not meet the
probable cause and particularity requirements of the Fourth Amendment to the United States
Constitution and that requests for the entirety of an individual’s email account too closely resembled a
general search. Judge Waxse, however, suggested these concerns could be remedied with “courtissued ex ante instructions” and advised the government to resubmit its application including either “a
search protocol that addresses the concerns expressed in this opinion” or one of the other ex ante
limitations recommended in the Order. Judge Waxse also expressed concern as to whether or not there
was sufficient probable cause to include four individuals/identifiers in the warrant application. The
government now seeks review of the Order, arguing that Judge Waxse’s decision is clearly erroneous
and contrary to existing law. For the reasons set forth below, the court both overrules and affirms
Judge Waxse’s decision and declines to grant the government’s warrant in its current form.
I.

Procedural History

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As part of its investigation into possible violations of 18 U.S.C. §§ 371 (conspiracy), 1029
(access device fraud), 1030 (computer intrusion), 1343 (wire fraud), and 2319 (copyright
infringement), the government applied for a search warrant seeking records related to three Hotmail
Accounts. The government requested the Hotmail Account records from the email provider, Microsoft
(“the Provider”), under 18 U.S.C. § 2703, also known as the Stored Communications Act (“SCA”).
Pursuant to the warrant application, the Provider was required to disclose content from the three
Hotmail Accounts including:
The contents of all emails associated with the account, including stored or preserved
copies of emails sent to and from the account, draft emails, deleted emails, archived
emails, the source and destination addresses associated with each email, the date and
time at which each email was sent, and the size and length of each email, as well as the
entirety of header information for each email;
All records or other information regarding the identification of the account, to include
full name, physical address, telephone numbers and other identifiers, records of session
times and durations, the date on which the account was created, the length of service,
the IP address used to register the account, log-in IP addresses associated with session
times and dates, account status, alternative email addresses provided during registration,
methods of connecting, log files, and means and source of payment (including any
credit or bank account number);
The types of service utilized and/or associated with this account to include all identifiers
for these services and any connection logs associated with the usage of these services;
All records or other information stored at any time by an individual using the account,
including address books, contact and buddy lists, calendar data, pictures, and files; and
All records pertaining to communications between the Provider and any person
regarding the account, including contacts with support services and records of actions
taken.

Once the information was obtained from the Provider, the warrant application sought
authorization for “government-authorized persons” to review the records to seize items that:
constitute fruits, contraband, evidence, and instrumentalities of violations of 18 U.S.C.
§§ 371 (conspiracy), 1029 (access device fraud), 1030 (computer intrusion), 1343 (wire

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fraud), and 2319 (copyright infringement), those violations involving [redacted],1 and
others known and unknown, and occurring since September 7, 2008, including, for each
account or identifier listed above, information pertaining to the following matters:
a. Evidence of the scanning or theft of intellectual property to include
copyright-protected material and those bearing trademarks;
b. Evidence of using access drive(s) to fraudulently obtain intellectual
property;
c. Evidence of developing, using, or distributing tools or code to
circumvent copy controls associated with intellectual property;
d. Evidence of developing, using, or distributing software, code, or
script as part of a “man-in-the-middle” computer intrusion;
e. Evidence indicating how and when the email account was accessed
or used, to determine the geographic and chronological context of
account access, use, and events relating to the crime under
investigation and to the email account owner;
f. Evidence indicating the email account owner’s state of mind as it
relates to the crime under investigation;
g. The identity of the person(s) who created or used the user ID,
including records that help reveal the whereabouts of such person(s);
h. The identity of the person(s) who communicated with the user ID
about matters relating to the scanning or theft of intellectual property,
or the various means to steal the intellectual property such as access
device fraud, computer intrusion, or circumventing copy controls,
including records that help reveal their whereabouts.

As part of its application, the government included an affidavit outlining the suspected criminal
activity and the reasons why the specific Hotmail Accounts were under investigation.
After reviewing the application, Judge Waxse issued a Memorandum And Order Denying
Application for Search Warrant (Doc. 2). In issuing his decision, Judge Waxse focused on the origins
of the Fourth Amendment and the Framers’ intent to prevent general searches. Judge Waxse noted the
Fourth Amendment’s particularity clause was included to prevent general searches and to enable the
1

This court has redacted sensitive information and will provide the redacted information to the government upon request.

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court to “ensure that the search will be carefully tailored to its justifications, and will not take on the
character of the wide-ranging exploratory searches the Framers intended to prohibit.” Id. at 8 (quoting
Maryland v. Garrison, 489 U.S. 79, 84 (1987)).
In deciding whether the present warrant met the Fourth Amendment particularity requirements,
Judge Waxse first acknowledged that little case law existed regarding the government’s attempt to
seize and search the entire contents of an individual email account. He noted that in the few cases that
did exist, courts often found warrants for the entirety of an email account were not overly broad. Judge
Waxse, however, expressed his disagreement with such decisions, believing these courts had not fully
considered an individual’s right to privacy in the contents of their email accounts.
After establishing a right to privacy in one’s email, Judge Waxse found the most reasonable
approach to considering the government’s application to search the entirety of these Hotmail Accounts
was to utilize a balancing test, weighing equally “the individual’s right to privacy against the
government’s ability to prosecute suspected criminals effectively.” Id. at 16. He reviewed the present
application by separating it into two parts based on Rule 41 of the Federal Rules of Criminal
Procedure: the place to be searched and the things to be seized.
Judge Waxse began by reviewing whether the warrant was sufficiently particular in the things
to be seized, or, the evidence the government sought to retain during its search of the contents of the
Hotmail Accounts. He found that, although the government established probable cause to seize
information related to violations of the specific statutes or to certain individuals/identifiers named, the
government had not established probable cause to seize any non-responsive information it received
from the Provider. Judge Waxse expressed concern that in searching the vast amount of information
that may be found in the entirety of an email account, the government may be exposed to far more
information than it needs for its investigation, thus violating the individual’s privacy. Importantly, he

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also found the government had not established probable cause as to four of the individuals/identifiers
listed in the warrant application—[redacted]—and that including the phrase “and others known and
unknown” was not sufficiently particular.
As for the place to be searched, Judge Waxse expressed concerns regarding whether the
contents of an individual’s email account met the Fourth Amendment’s particularity requirement. He
found that although the government identified a specific place to be searched—the individual email
account—the disclosure of the entirety of that account may allow the government to view, and
potentially use, information for which it did not have probable cause. Judge Waxse, however, noted
that although an entire email account was not a sufficiently particular description of the place to be
searched, the government could remedy this by providing a search protocol “explaining to the Court
how it intends [to] search the overseized-[electronically stored information, or “ESI”] and what it will
do with the non-responsive data once the search has been completed.” Id. at 37.
In addition to the search protocols, Judge Waxse also suggested a variety of other ex ante
instructions2 for the government to consider that would bring the warrant within the allowed
parameters of the Fourth Amendment. He noted “in its previous email opinions, the Court left the
suggestion of ex ante instructions—or as it referred to them then, ‘appropriate procedural
safeguard(s)’—up to the government, but the government has yet to suggest any.” Id. at 39. Judge
Waxse then proposed some “ex ante instruction options” including: categorical or keyword limitations,
search protocol, third party search of ESI (special masters, filter teams, or court-appointed experts),
and use restrictions—returning or destroying non-responsive data. Importantly, Judge Waxse did not
actually impose any of these ex ante instructions, but rather presented them to the government as
options that may remedy some of the particularity concerns he had with the warrant in its current form.

2

Judge Waxse defines ex ante instructions as “a set of instructions—which may contain conditions, limitations, restrictions,
or guidelines—given before the warrant is approved but which govern the warrant should it be approved.” (Doc. 2, at 4.)

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In denying the warrant, Judge Waxse stated, “[i]f the Court were to authorize this warrant, it
would be contradicting the manifest purpose of the Fourth Amendment’s particularity requirement,
which is to prevent general searches.” Id. at 48. He concluded that because of the substantial amount
of data in an individual email account, the balancing test swung too far in favor of the government. He
noted, however, that the government “may resubmit its Application for consideration once it includes a
search protocol that addresses the concerns expressed in this opinion or agrees to one of the other ex
ante instructions.” Id. at 49.
The government filed a Motion to Review Denial of Search Warrant in accordance with D.
Kan. Rule 72.1.4(e) (Doc. 4). As part of its motion, the government submitted an amended
application/affidavit, noting “[t]he government acknowledges that it failed to discuss [the
individuals/identifiers to which Judge Waxse found no probable cause] in the application/affidavit;
accordingly, the facts supporting their conclusion in the proposed warrant have been added to the
attached Application/Affidavit.” Id. at n 2.
In its Motion to Review, the government asks this court to find the warrant application
complies with the particularity and probable cause requirements of the Fourth Amendment and to grant
the proposed warrant without any of the ex ante instructions proposed by Judge Waxse. The
government argues the proposed warrant was sufficiently particular and did not authorize a general
search and that the government has the discretion to determine how to execute the warrant, thus
making any ex ante instructions unreasonable.
II.

Standard of Review

Under the Federal Magistrates Act, 28 U.S.C. § 631, et seq., magistrate judges have the
authority to decide pretrial, non-dispositive matters. 28 U.S.C. § 636(b)(1)(A). Included within this
pretrial authority is the issuance of search warrants. See Gomez v. United States, 490 U.S. 858, 868

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n.16 (1989). Pursuant to the Federal Magistrates Act, “a judge of the court may reconsider any pretrial
matter . . . where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A).3
Our local rules instruct parties to follow Rule 72(a) of the Federal Rules of Civil Procedure
when filing objections to a magistrate judge’s pretrial, non-dispositive matter. See D. Kan. Rule
72.1.4(e). Under Rule 72(a), a district court “must consider timely objections and modify or set aside”
any part of a magistrate judge’s order on a non-dispositive pretrial matter that is “clearly erroneous or
is contrary to law.” Thus, because an application for a search warrant is a non-dispositive, pretrial
matter, this court will review Judge Waxse’s order under the clearly erroneous or contrary to law
standard.
A district court must defer to a magistrate judge’s ruling on a non-dispositive order unless it
was clearly erroneous or contrary to law. Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006); see
also Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988) (noting that under
the clearly erroneous standard, unlike de novo review, the magistrate judge is accorded considerable
deference.). Under the clearly erroneous standard, “the reviewing court must affirm unless it on the
entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id.
This standard should be applied to those factual findings made by the magistrate judge. See § 3069
Practice and Procedure with Regard to Nondispositive Matters, 12 Fed. Prac. & Proc. Civ. § 3069 (2d
3

Under 28 U.S.C. § 636(b)(1), a district court’s standard of review of a magistrate judge’s decision depends on whether the
decision is on a dispositive or non-dispositive motion. Under 28 U.S.C. § 636(b)(1)(A), a magistrate judge may “hear and
determine any pretrial matter pending before the court.” Exempted from this provision are eight categories of dispositive
pretrial motions. See Gomez, 49 U.S. at 868. These include: a motion for injunctive relief, for judgment on the pleadings,
for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a
criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief
can be granted, and to involuntarily dismiss an action. 28 U.S.C. § 636(b)(1)(A). Under 28 U.S.C. § 636(b)(1)(B), for any
of the dispositive pretrial motions listed in § 636(b)(1)(A), a magistrate judge only has the authority to conduct evidentiary
hearings and submit to a judge of the court proposed findings of fact and recommendations for the disposition by a judge of
the court. A judge of the court may review de novo those proposed findings and recommendations on dispositive motions
and may “accept, reject, or modify” the findings and also “receive further evidence or recommit the matters” to the
magistrate with instructions.

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ed.). By contrast, the contrary to law standard permits “plenary review as to matters of law.” Id.; see
also Garcia v. Benjamin Group Enter. Inc., 800 F. Supp. 2d 399 (E.D.N.Y. 2011) (noting “under the
contrary to law standard of review, a district court may reverse a finding only if it finds that the
magistrate “failed to apply or misapplied relevant statutes, case law or rules of procedure”).
III.

Legal Standards
A. Fourth Amendment

The Fourth Amendment was included in the United States Constitution “partly to protect
against the abuses of general warrants that had occurred in England . . . .” Steagald v. United States,
451 U.S. 204, 220 (1981). The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be 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. The ultimate measure of whether government action is constitutional
under the Fourth Amendment is reasonableness. See Riley v. California, 134 S. Ct. 2473, 2482 (2014).
When government officials undertake a search to uncover evidence of criminal wrongdoing,
“reasonableness generally requires the obtaining of a judicial warrant.” Id. Under the Fourth
Amendment, a warrant must: (1) be issued by a neutral, disinterested magistrate; (2) be supported by
probable cause to believe “that the evidence sought will aid in a particular apprehension or conviction
for a particular offense”; and (3) describe with particularity the things to be seized and the place to be
searched. See Dalia v. United States, 441 U.S. 238, 255 (1979).
The “manifest purpose” of the particularity requirement within the Fourth Amendment is to
prevent general searches. Garrison, 480 U.S. at 84. General warrants are those which are “left to the
discretion of the executing officials the decision as to which persons should be arrested and which
places should be searched.” Steagald, 451 U.S. at 220. By limiting the authorization to search to only

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the places and things for which probable cause has been established, the particularity requirement
“ensures the search will be carefully tailored to its justifications, and will not take on the character of
the wide-ranging exploratory searches the Framers intended to prohibit.” Garrison, 480 U.S. at 84.
The purpose of the particularity requirement, however, is not limited to simply the prevention
of general searches. Groh v. Ramirez, 540 U.S. 551, 561 (2004). The particularity requirement also
“assures the individual whose property is searched or seized of lawful authority of the executing
officer, his need to search, and the limits of his power to search.” Id. at 561–62.
To be sufficiently particular, a warrant must contain “sufficiently particularized language that
creates a nexus between the suspected crime and the items to be seized.” Mink v. Knox, 613 F.3d 995,
1010 (10th Cir. 2010). A warrant must state with specificity what is to be taken so that “nothing is left
to the discretion of the officer executing the warrant.” Id. As for the place to be searched, a warrant
must “describe the premises with sufficient particularity so that the police can ascertain and identify
the place to be searched.” United States v. Brakeman, 475 F.3d 1206, 1211 (10th Cir. 2007) (noting
when determining the adequacy of a warrant’s description of the place to be searched, “practical
accuracy rather than technical precision controls”).
B. Stored Communications Act., 18 U.S.C. §§ 2701 et seq.
The government seeks authorization to obtain information from the Hotmail Accounts pursuant
to the SCA, 18 U.S.C. § 2703. Under the SCA, the government may require an electronic
communication service provider to disclose contents of an electronic communication that has been
held in electronic storage for 180 days or less “only pursuant to a warrant issued using the procedures
described in the Federal Rules of Criminal Procedure . . .” 18 U.S.C. § 2703(a). For electronic
communications held for more than 180 days, the government may require a “provider of remote
computing service” to disclose the requested electronic communications without notice to the

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subscriber or customer if the government obtains a warrant pursuant to the Federal Rules of Criminal
Procedure. See 18 U.S.C. § 2703(b)(1)(A).
C. Federal Rule of Criminal Procedure 41
Under the SCA, the government may only require disclosure of electronic communications if it
does so pursuant to a warrant issued using the Federal Rules of Criminal Procedure. Rule 41 of the
Federal Rules of Criminal Procedure governs searches and seizures. Rule 41(e)(2)(B) specifically
addresses warrants seeking ESI and sets forth a two-step procedure for the search and seizure of such
evidence. Rule 41(e)(2)(B) first authorizes “the seizure of electronic storage media or the seizure or
copying of electronically stored information.” Once the information has been seized, the rule then
allows for a “later review of the media or information consistent with the warrant.” The Advisory
Committee Notes discuss the need for the two-step procedure for ESI, noting “computers and other
electronic storage media commonly contain such large amount of information that it is often
impractical for law enforcement to review all of the information during execution of the warrant at the
search location . . . officers may seize or copy the entire storage medium and review it later to
determine what electronically stored information falls within the scope of the warrant.” Fed. R. Crim.
P. 41(e)(2) advisory committee’s note. The rule was designed to cover “all current types of computerbased information and to encompass future changes and developments.” Id. Importantly, the
Advisory Committee also notes, “[t]he amended rule does not address the specificity of description
that the Fourth Amendment may require in a warrant for electronically stored information, leaving the
application of this and other constitutional standards concerning both the seizure and the search to
ongoing case law development.” Id.
IV.

Analysis

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Taking into consideration the government’s application, Judge Waxse’s order, and the relevant
legal standards, this court will determine whether Judge Waxse’s decision to deny the application was
clearly erroneous or contrary to law. While this court acknowledges the government’s request to
reverse Judge Waxse and grant the newly submitted warrant application, this court would reiterate that
it has limited review over the current order and owes some deference to Judge Waxse’s decision. See
Ocelot Oil Corp., 847 F.2d at 1464 (noting “[t]he clearly erroneous standard . . . requires that the
reviewing court affirm unless it ‘on the entire evidence is left with the definite and firm conviction that
a mistake has been committed’”).
As mentioned above, Judge Waxse denied the warrant application for lack of particularity for
the place to be searched and things to be seized. Judge Waxse found the government’s request for the
entire contents of an individual’s email account was overbroad and created the potential for the
government to seize private, irrelevant information. More specifically, Judge Waxse noted the
government did not establish probable cause for four of the individuals/identifiers listed in the warrant
application. In finding the warrant was not sufficiently particular, Judge Waxse suggested the
government could resubmit its application and include one of his recommended ex ante instructions.
In considering Judge Waxse’s conclusions, this court needs to decide whether it was clearly
erroneous or contrary to law to find that the warrant application did not meet the probable cause and
particularity requirements of the Fourth Amendment. Before this court engages in that analysis, it first
will discuss the issue of ex ante instructions. In his order, Judge Waxse stated:
“[A]ll courts agree that magistrate judges have the authority to impose ex ante
instructions but that ex ante instructions have never been required. . . . In its previous
email opinions, the Court left the suggestion of ex ante instructions—or as it referred to
them then, ‘appropriate procedural safeguard(s)’—up to the government, but the
government has yet to suggest any. Instead, the government continues to insist it should
be entitled to all ESI in or associated with an individual’s email account without
limitation. Below are some ex ante instruction options.” (Doc. 2 at 39.)

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Judge Waxse then provided a thorough discussion of suggested ex ante instructions. He
concluded his order by denying the warrant but recommended the government resubmit its application
“once it includes a search protocol that addresses the concerns expressed in this opinion or agrees to
one of the other ex ante instructions.” (Doc. 2 at 49.) The government has asked this court to find that
it is not required to include ex ante instructions in its application prior to the issuance of the warrant.
In its Motion to Review, the government detailed the many reasons why it believed Judge Waxse’s
suggested ex ante instruction suggestions were unreasonable and argued it was entitled to the
information sought in the warrant without the inclusion of any of these ex ante limitations.
Although there is much discussion over possible ex ante instruction options, this court declines
to rule on whether any of them, individually, are reasonable in this particular case. Although Judge
Waxse included many options in his order, these were simply suggestions for the government in the
future, not court-ordered ex ante instructions for the issuance of this specific warrant. Had Judge
Waxse, for example, provisionally granted the warrant under the premise the government would
submit a search protocol, or had he granted the warrant but ordered the use of a special master to
search the data seized from the Provider, this court could then review those court-ordered ex ante
limitations for reasonableness. Because no ex ante instructions were ordered, this court has nothing to
review, and to comment on the reasonableness of each suggested limitation would result in this court
issuing an advisory opinion. See Norvell v. Sangre de Cristo Dev. Co., Inc., 519 F.2d 370, 375 (10th
Cir. 1975) (noting “[j]udicial restraint should be exercised to avoid rendition of an advisory opinion”).
And, although there are no specific ex ante instructions to review in this case, this court would
briefly note that ex ante instructions, as whole, are not per se unreasonable. Various courts have held
that ex ante instructions are permissible, but not required under the Fourth Amendment. See In re
Search Warrant, 71 A.3d 1158 (Vt. 2012) (rejecting “any blanket prohibition on ex ante search warrant

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instructions”); see also In the Matter of a Warrant for All Content & Other Info. Associated with the
Email Account xxxxxxx@gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp.
3d 386, 397 (S.D.N.Y. 2014), as amended (Aug. 7, 2014) [hereinafter, SDNY Email] (noting there was
no requirement that a “magistrate judge approving a warrant application must or should impose ex ante
restrictions pertaining to the later execution of that warrant” (emphasis added); United States v.
Christie, 717 F.3d 1156, 1166–67 (10th Cir. 2013) (discussing that the Fourth Amendment
particularity requirement may or may not require limitations ex ante; however, “even if courts do not
specify particular search protocol up front in the warrant application process, they retain the flexibility
to assess the reasonableness of the search protocols the government actually employed in its search
after the fact, when the case comes to court, and in light of the totality of the circumstances.”); United
States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006) (“Moreover, in contrast to our discussion of the
overbroad seizure claim above, there is no case law holding that an officer must justify the lack of a
search protocol in order to support issuance of the warrant. As we have noted, we look favorably upon
the inclusion of a search protocol; but its absence is not fatal”).
Although ex ante instructions may be reasonable in some contexts, none were ordered here, and
therefore this court will not review whether Judge Waxse’s suggested ex ante instructions are
reasonable. This court will instead shift its focus to the government’s claim that the warrant meets the
particularity and probable cause requirements of the Fourth Amendment.
This court first acknowledges Judge Waxse’s concern with properly balancing an individual’s
right to privacy with the government’s ability to effectively prosecute criminals. The digital storage
era has caused a need for courts to reevaluate well-established Fourth Amendment standards. See
United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999) (finding that “[r]elying on analogies to
closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth

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Amendment doctrines and ignore the realities of massive modern computer storage.’”). Courts should
now carefully consider the privacy concerns implicated when a vast amount of information is seized
from various electronic sources such as computer hard drives, cell phones, and email accounts. See
United States v. Ganias, 824 F.3d 199, 217 (2d Cir. 2016) (noting that the seizure of a computer hard
drive “can give the government possession of a vast trove of personal information about the person to
whom the drive belongs, much of which may be entirely irrelevant to the criminal investigation that
led to the seizure”).
In considering the email context specifically, courts have held an individual enjoys a right to
privacy in his or her emails. See United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (holding
“a subscriber enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with,
or sent or received through, a commercial ISP’”).4 Courts must respect this privacy right by requiring
particularity in a warrant for an individual’s email account so as to prevent a “general, exploratory
rummaging” of a person’s private life. See Andresen v. Maryland, 427 U.S. 463 (1976) (noting the
particularity requirement “makes general searches. . . impossible and prevents the seizure of one thing
under a warrant describing another” so that “nothing is left to the discretion of the officer executing the
warrant”).
Keeping in mind these privacy concerns, this court needs to determine whether the warrant was
valid under the Fourth Amendment. The government seeks information from the Hotmail Accounts
pursuant to the SCA. Under the SCA, email providers are required to disclose the “contents of

4

In finding a reasonable expectation of privacy in an individual’s emails, the Sixth Circuit noted the prominence of email in
modern communication stating, “[s]ince the advent of email, the telephone call and the letter have waned in importance,
and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate
information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and
businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online
purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent
appointments. In short, ‘account’ is an apt word for the conglomeration of stored messages that comprises an email
account, as it provides an account of its owner's life. By obtaining access to someone’s email, government agents gain the
ability to peer deeply into his activities.” Warshak, 631 F.3d at 284.

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electronic communications” or “information pertaining to a subscriber to or customer of such service”
only if the government obtains a “warrant issued using the procedures described in the Federal Rules
of Criminal Procedure.” See 18 U.S.C. §§ 2703(a), 2703(b)(A). As mentioned above, Rule 41 of the
Federal Rules of Criminal Procedure governs searches and seizures. Specifically, Rule 41(e)(2)(B)
governs warrants seeking ESI. This provision sets out the “seize first, search second” two-step rule
created for ESI, which was developed because “computer and other electronic storage media
commonly contain such large amounts of information that it is often impractical for law enforcement
to review all of the information during execution of the warrant at the search location.” See Fed. R.
Crim. P. 41(e)(2) advisory committee’s note.
Judge Waxse concluded that Rule 41 “both textually and practically was not intended to apply
to searches of email accounts obtained under the SCA.” (See Doc. 2 at 36.) Relying on the advisory
committee commentary, Judge Waxse interpreted Rule 41(e)(2) to apply only to situations in which it
was impractical for law enforcement to review ESI during the execution of the warrant at the search
location—i.e. at the suspect’s home. Because a law enforcement officer never has to enter a suspect’s
home in order to retrieve the electronically stored communications and information from their email
accounts, Judge Waxse believes Rule 41 has no practical purpose when seeking information
electronically stored by an email provider under the SCA.
Based on the advisory committee note to Rule 41(e)(2), however, emails fall squarely within
the definition of ESI. The note states that Rule 41(e)(2) covers a wide array of ESI as defined in Rule
34(a) of the Federal Rules of Civil Procedure. See Fed. R. Crim. P. 41(e)(2) advisory committee’s
note. Rule 34(a) includes a “broad and flexible” description of ESI, which includes “all current types
of computer-based information” and encompasses all “future changes and developments.” See id. The
advisory committee note to Rule 34(a) of the Federal Rules of Civil Procedure definitively includes

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email within the definition of ESI. See Fed. R. Civ. P. 34(a) advisory committee’s note (“Rule
34(a)(1) is expansive and includes any type of information that is stored electronically. A common
example often sought in discovery is electronic communications, such as e-mail.”). Email, therefore,
conclusively falls under the ESI umbrella, thus, Rule 41(e)(2) applies to the search and seizure of email
accounts.
And while the two-step procedure under Rule 41(e)(2) may apply to the search and seizure of
emails, Judge Waxse noted the Rule was silent on the constitutional requirements the government must
meet before obtaining a warrant to initiate the Rule 41(e)(2) process. The advisory committee note for
Rule 41(e)(2) states, “The amended rule does not address the specificity of description that the Fourth
Amendment may require in a warrant for electronically stored information, leaving the application of
this and other constitutional standards concerning both the seizure and the search to ongoing case law
development.” See Fed. R. Crim. P. 41(e)(2) advisory committee’s note.
In considering the above analysis, this court would conclude the two-step procedure under Rule
41(e)(2) governs the search and seizure of emails obtained pursuant to the SCA. The advisory
committee note only leaves open the particularity question to be addressed in each specific
circumstance, giving judges flexibility in deciding whether the warrant meets Fourth Amendment
particularity standards. Because the two-step procedure applies to the search and seizure of emails
under the SCA, the question left to be decided is whether, in considering the current state of case law,
the present warrant meets the particularity requirements of the Fourth Amendment.
The Tenth Circuit has held that a search should be “confined in scope to particularly described
evidence relating to a specific crime for which there is demonstrated probable cause.” United States v.
Brown, 984 F.2d 1074, 1077 (10th Cir. 1993). Specifically regarding ESI, the Tenth Circuit has
“adopted a somewhat forgiving stance when faced with a ‘particularity’ challenge to a warrant

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authorizing the seizure of computers.” United States v. Grimmett, 439 F.3d 1263, 1269 (10th Cir.
2006). And while a computer search “may be as extensive as reasonably required to locate the items
described in the warrant,” the warrant needs to be clear as to what evidence is being sought, and
officers should “conduct the search in a way that avoids searching files of types not identified in the
warrant.” Id. at 1270.
As mentioned above, the case law surrounding particularity challenges in the email context is
sparse. What exists, however, tends to support the notion that Rule 41(e)(2) authorizes the seizure and
search of an entire email account subject to an ex post review for reasonableness. Support comes from
both cases involving the warrant applications themselves, see SDNY Email, 33 F. Supp. 3d at 401; In
the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at
Premises Controlled by Apple, Inc., 13 F. Supp. 3d 157 (D.D.C. 2014) [hereinafter DC Email], and
cases involving motions to suppress after the warrant has already been granted and executed, see, e.g.,
United States v. Scully, 108 F. Supp. 3d 59 (E.D.N.Y. 2015) (holding search warrants for Yahoo email
accounts were not overly broad or insufficiently particular in violation of the Fourth Amendment);
United States v. Deppish, 994 F. Supp. 2d 1211 (D. Kan. 2014) (noting “nothing in § 2703 precludes
the Government from requesting the full content of a specified email account, nor has the Tenth Circuit
ever required warrants to identify a particularized search strategy”); United States v. Taylor, 764 F.
Supp. 2d 230, 236–37 (D. Me. 2011) (finding a warrant to search emails and seize evidence related to
defendant’s income and financial means “reasonably limits the evidence to be seized” and was not
overly broad simply because the government was authorized to search his email account).
In cases in which courts have either denied a search warrant for the entirety of an email account
or suppressed evidence based on an overbroad search warrant, the warrants lacked particularity, for
example, in identifying a specified date range or referencing the violation of a specific criminal statute.

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See In re [REDACTED] @gmail.com, 62 F. Supp. 3d 1100, 1104 (N.D. Cal. 2014) (denying the search
warrant because “there is not date restriction of any kind . . . [n]or has the government made any kind
of commitment to return or destroy evidence that is not relevant to its investigation); United States v.
Barthelman, No. 13-10016-MLB, 2013 WL 3946084, *11 (D. Kan. July 31, 2013) (holding evidence
should be suppressed because the warrant was not sufficiently particular in that it failed to reference a
particular criminal statute and instead requested “any and all evidence of communications used in
furtherance of the violation of laws of the State of Ohio”); see also United States v. Otero, 563 F.3d
1127 (10th Cir. 2009) (holding a warrant for a computer was overbroad because the warrant did not
contain any affirmative limitations on what a searcher would seize, thus authorizing a general search of
the computer). Limitations such as these help prevent the “general rummaging” of the individual’s
email account. When the government includes specific details as to what it seeks within the email
account, the warrant is more in line with Fourth Amendment particularity requirements.
This court acknowledges the concern Judge Waxse and others have with the potential
implications of the government overseizing data that does not fall within the scope of the search
warrant. See, e.g., Ganias, 824 F.3d at 205–08. Courts, however, have developed a “more flexible
approach to the execution of search warrants for electronic evidence, holding the government to a
standard of reasonableness.” Scully, 108 F. Supp. at 95. A warrant authorizing the seizure of records
of criminal activity “permits officers to examine many papers in a suspect’s possession to determine if
they are within the described category.” United States v. Wicks, 995 F.2d 964, 974 (10th Cir. 1993)
(citing United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990) (noting the necessity of allowing
officers conducting a search some latitude because “few people keep documents of their criminal
transactions in a folder marked ‘drug records’”)). And unlike a warrant for a cognizable physical
object—such as drugs or weapons—when officers search through papers, records, or data for evidence,

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“it is certain that some innocuous documents will be examined, at least cursorily, in order to determine
whether they are, in fact, among those papers authorized to be seized.” Andresen, 427 U.S. at 482
n.11. This is not to say that the government obtains unchecked discretion simply because the warrant
authorizes a search of documents or data. Broad sweeping, comprehensive searches remain
unconstitutional, especially when searching personal ESI because “computers can hold so much
information touching on many different areas of a person’s life.” United States v. Wasler, 275 F.3d
981, 986 (10th Cir. 2001) (quoting United States v. Tamura, 694 F. 2d 591, 595–96 (9th Cir. 1982)).
Thus, so long as a warrant specifies with particularity what evidence the government intends to seize,
establishes probable cause that the evidence is connected to a specific criminal statute, and includes
some limitations (such as a date range) to prevent the potential of a general search, the warrant meets
the Fourth Amendment particularity requirement. The search may be reviewed ex post should the
government execute the warrant in an unreasonable manner. See Dalia, 441 U.S. at 258 (holding, “[i]t
would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that
Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the
procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have
held . . . that the manner in which a warrant is executed is subject to later judicial review as to its
reasonableness”).
In applying the law to the warrant at issue, this court concludes it was clearly erroneous or
contrary to law for Judge Waxse to find it was not sufficiently particular. The warrant application
identified with specificity the target email accounts to be searched and the evidence to be seized in
connection with violations of 18 U.S.C. §§ 371 (conspiracy), 1029 (access device fraud), 1030
(computer intrusion), 1343 (wire fraud), and 2319 (copyright infringement), all occurring since
September 7, 2008. The government stated with specificity the exact information it sought, thus

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leaving officers with little discretion to go outside the scope of the warrant. The application also
included an affidavit detailing the criminal scheme and explaining the relevance of the evidence to the
investigation. Rule 41(e)(2) authorizes the “seize first, search second” two-step process, thus allowing
the government to obtain all of the data to later search for relevant evidence. And while Rule 41(e)(2)
leaves open the question of particularity when the government seeks ESI, the majority of case law
relating to the search of an email account has upheld the Government’s ability to obtain the entirety of
the account to then search for relevant evidence. Based on the current state of the law, this court finds
Judge Waxse’s decision regarding particularity was clearly erroneous or contrary to law.
Although this court finds the warrant sufficiently particular, it agrees with Judge Waxse’s
conclusion that the warrant lacked probable cause to support a connection between the investigation
and four of the individuals/identifiers listed in the warrant. Judge Waxse noted there was not sufficient
probable cause to connect [redacted] to the criminal scheme. The government, in its motion to review,
conceded it did not include the proper information to connect those individuals/identifiers to the
investigation. To remedy this, the government submitted a new warrant application with its motion to
review in which it included new information to establish probable cause for those
individuals/identifiers. While this information may satisfy the lack of probable cause, this court may
not consider new evidence while sitting in review of a magistrate judge’s order on a non-dispositive
pretrial order. As noted above, under Rule 72(a), a district court “must consider timely objections and
modify or set aside” any part of a magistrate judge’s order on a non-dispositive pretrial order that is
“clearly erroneous or is contrary to law.” The rule does not authorize a district court to consider new
evidence when reviewing a magistrate’s decision on a pretrial non-dispositive order. Compare Fed. R.
Civ. P. Rule 72(a) with Fed. R. Civ. P. Rule 72(b) (noting that for dispositive motions, a judge of the
court may review a magistrate’s recommended disposition de novo and may “accept, reject, or modify”

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the findings and also “receive further evidence or recommit the matters” to the magistrate with
instructions) (emphasis added.) Thus, this court may not consider the newly submitted warrant
application and finds there is not sufficient probable cause in the original warrant to connect [redacted]
to the investigation. Judge Waxse’s decision was therefore not clearly erroneous or contrary to law
and this court affirms his decision to deny the warrant for lack of probable cause for those four
individuals/identifiers.5
In conclusion, this court acknowledges the careful balance that needs to be achieved between
an individual’s right to privacy and the government’s ability to prosecute criminals. The digital era has
created new and more complicated Fourth Amendment challenges. File cabinets with folders and
documents have been replaced with electronic devices with immense digital storage capabilities, thus
the government should be more cognizant of the vast quantities of private material that may be
intermingled with relevant evidence.
The law, however, authorizes the government to “seize first, search second” when dealing with
ESI. Courts need to ensure that search warrants seeking ESI are sufficiently particular so that officers
executing a warrant do not exceed their scope and perform a “general rummaging” of a person’s
private information. Based on the current status of case law, this court finds the present warrant is
sufficiently particular under the Fourth Amendment. And while this court acknowledges that a judge
may have the authority to impose reasonable ex ante instructions, it declines to comment on the ex ante
instructions suggested by Judge Waxse. This court, however, will not grant the warrant as is because
Judge Waxse’s decision that there was insufficient probable cause as to the four individuals/identifiers

5

This court notes that Judge Waxse also took issue with the government’s inclusion of the phrase “and others known and
unknown” as overbroad. The government did not raise an objection to this finding in its motion and therefore this court
will not review it as “a party may not assign as error a defect in the order not timely objected to.” See Fed R. Civ. P. Rule
72(a).

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was not clearly erroneous or contrary to law. The government may resubmit its warrant application for
reconsideration by a magistrate judge.
IT IS THEREFORE ORDERED that the court overrules in part and sustains in part the
government’s objections in its Motion to Review Denial of Search Warrant (Doc. 4). The court will
not grant the original warrant due to lack of probable cause as to the four individuals/identifiers. This
case is closed.
Dated this 28th day of September, 2016, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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