Case 1:18-cr-00083-TSE Document 74 Filed 05/21/18 Page 1 of 6 PageID# 1335

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA,
v.
PAUL J. MANAFORT, JR.,
Defendant.

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Criminal No. 1:18-cr-00083-TSE
Judge T. S. Ellis, III

DEFENDANT PAUL J. MANAFORT, JR.’S REPLY TO THE SPECIAL COUNSEL’S
MEMORANDUM IN OPPOSITION TO HIS MOTION TO SUPPRESS EVIDENCE AND
ALL FRUITS THEREOF RELATING TO THE SEARCH OF HIS RESIDENCE
LOCATED IN ALEXANDRIA, VIRGINIA
Defendant Paul J. Manafort, Jr., by and through counsel, hereby submits his reply to the
Special Counsel’s memorandum in opposition (Dkt. # 65) to his motion to suppress evidence and
all fruits thereof relating to the search of his residence (the “Manafort Home”) located in
Alexandria, Virginia (Dkt. #47).
The Fourth Amendment of the Constitution guarantees that one’s house will not be
searched and that the possessions there will not be seized unless a warrant – particularly describing
the items to be searched and seized and supported by probable cause that links those items to
purported criminal activity – is issued by a judge. It goes without saying that personal computers,
telephones, electronic devices and other storage media are pervasive in our society, maintained in
virtually every American home.1 Indeed, it would be hard to find a home where residents do not
store almost everything, from mundane information to their most private medical and financial

1

See, e.g., Quentin Fortrell, “Consumers sitting on $9 billion in old iPhones,” MarketWatch (Feb. 23, 2013)
(available at https://www.marketwatch.com/story/consumers-hoard-9-billion-in-old-iphones-2013-02-15)
(most “American consumers say they have two or more unused cell phones in their household, according
to a new survey”).

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data, on electronic devices. Virtually every computer contains such data, as do smart phones, and
electronic devices can monitor what residents say and do, can control music, lighting, climate, and
more. In these modern times, American homes are electronic.
Based on information that was obtained from a former employee of Davis Manafort
Partners (“DMP”), the government learned that Mr. Manafort had a desktop computer in his home
office, used electronic media in his business, and kept a drawer of no-longer-used electronic
equipment (which he donated to charity) at his prior residence. (Dkt. # 65 at 4.) The Special
Counsel’s position in this case is that law enforcement officers can present allegations of some
type of criminality (unrelated to the Russian collusion/Trump campaign investigation that spurred
his appointment), secure a warrant to search for records that relate to a laundry list of federal
criminal statutes, and search and seize every computer, electronic device, and media storage device
in the defendant’s home, regardless of whether the equipment even belongs to the defendant. But
the government’s search of the Manafort Home violated the Fourth Amendment, and the fruits of
the overbroad and unlawful search should be suppressed.
The Supreme Court has recently reiterated that, “[f]ew protections are as essential to
individual liberty as the right to be free from unreasonable searches and seizures.” Byrd v. United
States, No. 16-1371, slip op. at 6, 2018 WL 2186175, at *6 (U.S. May 14, 2018). While the Special
Counsel concedes that the Fourth Amendment’s “particularity requirement” 2 was designed “‘to
prevent general searches,’” (Dkt. # 65 at 7 (quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987)),
the government nevertheless contends that the warrant permitted the agents to seize virtually every
electronic device in the Manafort Home without any regard to whether the “[c]omputers or storage

2

The FBI Affidavit (containing more information than the warrant) was neither attached to nor incorporated
into the warrant, and the Fourth Amendment’s particularity requirement must be satisfied “in the warrant,
not in the supporting documents.” Groh v. Ramirez, 540 U.S. 551, 557 (2004) (emphasis added).

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media [were] used as a means to commit the Subject Offenses.” (Id. at 10). This is the kind of
general search and seizure that the Fourth Amendment forbids. 3
Indeed, the Special Counsel contends that the “Apple iPod” or “iPod Touch” could be
seized even though there were no allegations in the affidavit that such devices were ever utilized
in Mr. Manafort’s business. (Id. at 18.) The seizing agents did not stop there, however. The
Manafort family’s personal effects were rummaged through and seized, including the following
items:
1. Nikon Cool Pics FN-1 camera
2. Go Pro Hero 2 camera
3. Nikon D-7000 camera
4. Casio EXILIM camera
5. Sony camera
6. Nikon D-90 camera
7. Nikon I camera
8. Nikon Cool Pics S-9700 camera
9. Sony Handicam
10. Panasonic video camera
11. Casio camera
12. Sony Cyber Shot camera
13. Canon Power Shot camera

3

United States v. Burroughs, 905 F. Supp.2d 297 (D.D.C. 2012), cited by the Special Counsel, supports the
defendant’s position that the warrant at issue was not sufficiently particularized. (Dkt. # 65 at 11, n.7). In
Burroughs, the warrant identified “cellphones” and an “iPod Shuffle device” even though it did not identify
the color, size and type of the phones or the color of the iPod Shuffle. Id. at 307. Here, by contrast
“cellphones” and “iPods” were not even identified, leaving the agents to use their imaginations as to what
“electronic devices” and “media storage” they could seize.

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(See Dkt. # 48, Ex. A (motion to file unredacted exhibits under seal pending, see Dkt. # 56).)
As the Supreme Court observed in Byrd, “the Court has viewed with disfavor practices that
permit ‘police officers unbridled discretion to rummage at will among a person’s private effects.’”
Byrd, supra, slip op. at 6, 2018 WL 2186175, at *6 (quoting Arizona v. Gant, 556 U.S. 332, 345
(2009)). See also United States v. Owens, 848 F.2d 462, 463 (4th Cir. 1988) (Fourth Amendment
forbids “general, exploratory searches.”). What possible relevance the items listed above would
have had to the authorized investigation is beyond imagination. Yet, the Special Counsel takes
the position that any electronic device “capable of storing evidence” – and regardless of whether
it was related to the limited information received from the former DMP employee – was within
the scope of the warrant and could be seized. (Dkt. # 65 at 18.) But this position is without merit.
Allegations that Mr. Manafort had a desktop computer, “made widespread use of electronic media”
in his business – like every business person – and held on to old electronic equipment at his prior
residence until he could donate it, even if coupled with an allegation that Mr. Manafort was
engaged in criminal activity, cannot establish “the requisite ‘nexus . . . between the item to be
seized and criminal behavior[.]’” United States v. Hoang Anh Thi Duong, 156 F. Supp. 2d 564,
572 (E.D. Va. 2001) (quoting Warden v. Hayden, 387 U.S. 294, 307 (1967)).
The Special Counsel and the seizing agents had no reasonable basis to believe that all
“computers, electronic devices, and storage media” would be pertinent to the investigation.
Because it was unreasonable, United States v. Leon, 468 U.S. 897 (1984), offers no escape to the
Special Counsel. See United States v. Robinson, 275 F.3d 371, 382 (4th Cir. 2001) (blanket
suppression appropriate when searching officers flagrantly disregard terms of warrant and “engage
in indiscriminant fishing for evidence.”) (citation and internal quotation marks omitted).

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 Case 1:18-cr-00083-TSE Document 74 Filed 05/21/18 Page 5 of 6 PageID# 1339

Dated: May 21, 2018

Respectfully submitted,
s/ Kevin M. Downing
Kevin M. Downing (pro hac vice)
Law Office of Kevin M. Downing
601 New Jersey Avenue NW
Suite 620
Washington, DC 20001
(202) 754-1992
kevindowning@kdowninglaw.com
s/ Thomas E. Zehnle
Thomas E. Zehnle (VSB No. 27755)
Law Office of Thomas E. Zehnle
601 New Jersey Avenue NW
Suite 620
Washington, DC 20001
(202) 368-4668
tezehnle@gmail.com
s/ Jay R. Nanavati
Jay R. Nanavati (VSB No. 44391)
Kostelanetz & Fink LLP
601 New Jersey Avenue NW
Suite 620
Washington, DC 20001
(202) 875-8000
jnanavati@kflaw.com
Counsel for Defendant Paul J. Manafort, Jr.

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 Case 1:18-cr-00083-TSE Document 74 Filed 05/21/18 Page 6 of 6 PageID# 1340

CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of May, 2018, I will electronically file the foregoing
with the Clerk of Court using the CM/ECF system, which will then send a notification of such
filing (NEF) to the following:
Andrew A. Weissman
Greg D. Andres
U.S. Department of Justice
Special Counsel’s Office
950 Pennsylvania Avenue NW
Washington, DC 20530
Telephone: (202) 616-0800
Email: AAW@usdoj.gov
GDA@usdoj.gov
s/ Jay R. Nanavati
Jay R. Nanavati (VSB No. 44391)
Kostelanetz & Fink LLP
601 New Jersey Avenue NW
Suite 620
Washington, DC 20001
(202) 875-8000
jnanavati@kflaw.com
Counsel for Defendant Paul J. Manafort, Jr.

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