ASSY VICK CAROLAN LLP JEAN-PAUL JASSY, Cal. Bar No. 205513 jpjassy@jassyvick.com i KEVIN L. VICK, Cal. Bar No. 220738 a. Wm. cm ELIZABETH BALDRIDGE, Cal. Bar No. 313390 JUN 27 2019 ebaldridge@jassyvick.com 800 Wilshire Boulevard, Suite 800 By: T. Los Angeles, California 90017 Telephone: 310-870-7048 Facsimile: 310-870-7010 Attorneys for Non-Party Media Entities San Diego Union-Tribune, NBC 7 San Diego, KFMB News 8, FOXS San Diego and The Associated Press SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO THE PEOPLE OF THE STATE OF Case No. CD281508 CALIFORNIA Assigned to Hon. Peter C. Deddeh V- Department SD-P JOHN T- EARNEST NOTICE OF MOTION AND MOTION BY Defendant ON-PARTY MEDIA ENTITIES TO UNSEAL SEARCH WARRANT MEMORANDUM OF POINTS AND AUTHORITIES IN DECLARATION OF ELIZBETH BALDRIDGE, EXS. A-E Date: July 25, 2019 Time: 9:00 am. MEDIA MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on July 25, 2019, at 9:00 a.m. or as soon thereafter as counsel 3 may be heard in Department SD-P of the above-entitled Court, located at 1100 Union Street, San 4 Diego, CA 92101, non-party media entities San Diego Union-Tribune, NBC 7 San Diego, KFMB 5 News 8, FOX5 San Diego and The Associated Press (collectively, “Media Entities”) will and 6 hereby do move to intervene and seek a court order unsealing court records pertaining to seventeen 7 search warrants issued in connection with the arrest of John T. Earnest and/or with the investigation 8 into the April 27, 2019, Chabad of Poway synagogue shooting (“the Poway Shooting”).1 Media 9 Entities also request that the Court unseal all records associated with the search warrants that have 10 been filed in San Diego County Superior Court, including applications, motions, orders, receipts, 11 lists of inventory, and any other details attendant to the warrants. 12 Media Entities make this motion on the following independent grounds: 13 First, pursuant to the express provisions of California Penal Code § 1534(a), executed and 14 returned search warrant materials “shall be open to the public as a judicial record.” Additionally, 15 pursuant to the United States Constitution, the California Constitution, Article I, § 2(a) and § 2(b), 16 California Code of Civil Procedure § 1904, California Rule of Court 2.550, et seq,, and the common 17 law, judicial records are presumptively open, and cannot be sealed absent specific, on-the-record 18 findings that there is an overriding interest that overcomes the right of public access to the records. 19 Media Entities are informed that there have been no judicial findings in support of the 20 continued sealing of these materials beyond the date that the warrants were executed or 10 days 21 after their issuance. See Cal. Pen. Code § 1534(a). Additionally, Media Entities are informed that 22 the Court has not made supporting on-the-record findings justifying the continued sealing of the 23 search warrants and related materials after their execution and return; nor could such a justification 24 be made for a continuing or perpetual seal over these warrant materials. Tellingly, a federal court 25 presiding over Mr. Earnest’s charges of violating federal law recently unsealed two search warrants 26 27 28 1 Media Entities seek records associated with the following numbered search warrants: E2019-413; E2019-414; E2019-418; E2019-434; E2019-435; E2019-436; E2019-437; E2019-438; E2019-439; E2019-442; 60576; 60577; 60578; 60579; 60580; 60581; and 60742. -1MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 related to the case once the defendant had been indicted, meaning the Court there determined that 2 release of the warrants would not impede or undermine any continuing investigation. The same 3 circumstances exist here, and the warrants and related materials should be unsealed. 4 For these reasons, Media Entities respectfully request that the Court make immediately 5 available to the public all of the warrant materials related to the search of Mr. Earnest’s property, or 6 other property owned by Mr. Earnest, and related to the arrest of Mr. Earnest and/or the 7 investigation of the Poway Shooting. 8 This Motion is based upon the attached Memorandum of Points and Authorities, the 9 Declaration of Elizabeth Baldridge and accompanying Exhibits A-E, on all pleadings, records, and 10 files in this action, on all matters of which judicial notice may be taken, and on argument and 11 evidence presented at the hearing on this Motion. 12 13 DATED: June 27, 2019 JASSY VICK CAROLAN LLP 14 ____________________________________ ELIZABETH BALDRIDGE Attorneys for Non-Party Media Entities San Diego Union-Tribune, NBC 7 San Diego, KFMB News 8, FOX5 San Diego and The Associated Press 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ................................................................................................................... 1 4 II. STATEMENT OF FACTS...................................................................................................... 3 5 III. LEGAL ANALYSIS ...............................................................................................................4 6 A. Penal Code Section 1534(a) Mandates that All Materials Related to a Returned Search Warrant be Made Public. .................................................................................4 B. The Strong Presumption Favoring Public Access To Judicial Proceedings and Records Independently Justifies Disclosure of the Search Warrant Materials ...........7 7 8 9 i. Any Sealing Request Must Comply with Rules of Court 2.550 and NBC Subsidiary. .......................................................................................................9 ii. The Heavy Burden of Showing That a Blanket Sealing is Necessary Cannot Be Made Here................................................................................................10 10 11 12 13 IV. CONCLUSION .....................................................................................................................12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Associated Press v. District Court, 705 F.2d 1143 (9th Cir. 1983) ..................................................................................................8 5 6 CBS v. United States District Court, 729 F.2d 1174 (9th Cir. 1983) ................................................................................................11 7 Estate of Hearst, 67 Cal. App. 3d 777 (1977) ..................................................................................................2, 8 8 9 10 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) .................................................................................................................2 Hawkins v. Superior Court, 22 Cal. 3d 584 (1978) .............................................................................................................11 11 In re Marriage of Burkle, 135 Cal. App. 4th 1045 (2006) ...............................................................................................10 12 13 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999)............................................................................ 1, 2, 6, 7, 8, 9, 10, 12 14 Oregonian Publishing Co. v. District Court, 920 F.2d 1462 (9th Cir. 1990) ..................................................................................................9 15 16 17 People v. Hobbs, 7 Cal. 4th 948 (1994).............................................................................................. 1, 4, 5, 7, 10 People v. Holloway, 33 Cal. 4th 96 (2004)................................................................................................................5 18 People v. Jackson, 128 Cal. App. 4th 1009 (2005) .............................................................................................6, 7 19 20 People v. Manson, 61 Cal. App. 3d 102 (1977) ....................................................................................................11 21 People v. Sirhan, 7 Cal. 3d (1972) ......................................................................................................................11 22 23 24 Press-Enterprise v. Superior Court (Press-Enterprise I), 464 U.S. 501 (1984) .........................................................................................................10, 12 Press-Enterprise v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986) ...............................................................................................................9, 10 25 Press-Enterprise v. Superior Court (Press-Enterprise III), 22 Cal. App. 4th 498 (1994) ...................................................................................................11 26 PSC Geothermal Services Co. v. Superior Court, 25 Cal. App. 4th 1697 (1994) .................................................................................1, 4, 5, 7, 10 27 28 MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 2 3 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) .................................................................................................................7 Savaglio v. Wal-Mart Stores, 149 Cal. App. 4th 588 (2007) ...................................................................................................9 4 Sheppard v. Superior Court, 17 Cal. 3d 107 (1976) ...............................................................................................................5 5 Torres v. Superior Court, 80 Cal. App. 4th 867 (2000) .....................................................................................................5 6 7 United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) .................................................................................................11 8 Washington Post Co. v. Soussoudis, 807 F.2d 383 (4th Cir. 1986) ....................................................................................................9 9 10 California Constitution Article I, § 3(b) .........................................................................................................................9 11 12 State Statutes 13 California Penal Code § 1534(a) ...................................................................... 1, 2, 4, 5, 7, 8, 9, 11, 12 14 California Rules of Court Rule 2.550.............................................................................1, 2, 6, 8, 9, 10 15 California Rules of Court Rule 2.551...................................................................................................6 Evidence Code § 1040 ..........................................................................................................................5 16 Evidence Code § 1041 ..........................................................................................................................4 17 Evidence Code § 1042 ..........................................................................................................................4 18 19 20 21 22 23 24 25 26 27 28 MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 The Poway Shooting and the resulting criminal investigation and case are matters of 4 significant public interest. Public access to these materials is exactly what state and federal 5 constitutional, statutory, and common law intend. The criminal defendant in the Poway Shooting, 6 John Earnest, has already been charged with crimes and is in custody, making the search warrants at 7 issue post-indictment court records. Releasing the records would add substantial transparency to 8 this important public matter. 9 Penal Code Section 1534(a) expressly requires that executed and returned search warrants 10 “shall be open to the public as a judicial record.” Cal. Pen. Code § 1534(a) (emphasis added). 11 Courts interpreting Section 1534(a) have recognized only narrow exceptions to this presumption of 12 openness, and there is no categorical exemption for information relating to an ongoing 13 investigation. See PSC Geothermal Svcs. v. Superior Court, 25 Cal. App. 4th 1697, 1713 (1994) 14 (recognizing exception solely to protect an ongoing investigation would create an impermissibly 15 broad exemption to the Legislature’s guarantee that these materials will be available to the public 16 after a warrant has been executed). Indeed, even in the unusual circumstances where certain 17 information may legitimately be redacted from the search warrant materials, the California Supreme 18 Court has made clear that a court should “take whatever further action may be necessary to ensure 19 full public disclosure of the remainder” of the records. People v. Hobbs, 7 Cal. 4th 948, 971 (1994). 20 Based on its presumptive First Amendment right of access to court records, the public is 21 entitled to greater transparency here. The California Supreme Court has emphasized that such 22 records may be sealed only “in the rarest of circumstances.” NBC Subsidiary (KNBC-TV), Inc. v. 23 Superior Court, 20 Cal. 4th 1178, 1226 (1999). Under the NBC Subsidiary standards, subsequently 24 codified by the Judicial Council in California Rules of Court 2.550(d) and 2.550(e)(1), court records 25 cannot be maintained under seal unless a court specifically finds: (1) that there is an overriding 26 interest superseding the public’s right of access; (2) that there is a substantial probability that 27 sealing will promote that interest; (3) that the sealing order is narrowly tailored to serve the 28 -1MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 overriding interest; and (4) that there are no less restrictive alternatives to sealing. See NBC 2 Subsidiary, 20 Cal. 4th at 1208; Cal. R. Ct. 2.550(d), 2.550(e)(1). 3 Media Entities seek to enforce their statutory and constitutional rights of access to the 4 warrant materials pertaining to the search and arrest of John T. Earnest and/or the investigation in 5 the Poway Shooting, and to any supporting affidavits, inventory lists, returns, and records the Court 6 has relied on in issuing the warrants.1 The warrants were executed in connection with the Poway 7 Shooting which took place on April 27, 2019, and for which Mr. Earnest has been arrested. On 8 May 21, 2019, Mr. Earnest was also indicted in the United States District Court for the Southern 9 District of California on 113 federal charges relating to the Poway Shooting.2 10 A key element of the criminal cases against Mr. Earnest are the allegations that the Poway 11 Shooting was religiously and/or racially motivated. The Complaint filed in this action charges Mr. 12 Earnest with murder and alleges that he “intentionally killed [the victim] because of her religion” 13 and also charges him with attempts to commit hate crimes. Exhibit A to the Declaration of 14 Elizabeth Baldridge (“Baldridge Decl.”), Superior Court Complaint, at 2, 3, and 4. And the federal 15 indictment of Mr. Earnest cites, variously, to harm inflicted on “the enjoyment of th[e] victim’s free 16 exercise and religious beliefs”; “because of the actual and perceived race of any person”; and 17 “because of the religious character of th[e] property” in 109 of the 113 counts against him. See 18 Baldridge Decl., Ex. B, May 21, 2019, Federal Indictment, at, e.g., 2, 5, and 8. The occurrence of 19 hate crimes such as those alleged in the Poway Shooting is of significant public interest. The nature 20 of the crimes at issue here, and their profound and sustained impact on the victims, families, and 21 loved ones also calls out for a transparent process to ensure confidence in the judicial process and 22 23 1 24 25 26 27 Media Entities have standing to move to unseal these court records. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610 n.25 (1982) (recognizing that public and the media “must be given an opportunity to be heard on the issue of their exclusion” from courtroom proceedings); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1217-1218 (1999) (recognizing that the media has standing to challenge orders closing court proceedings and sealing court records); Estate of Hearst, 67 Cal. App. 3d 777, 782 (1977) (same). 2 The case number in the United States District Court for the Southern District of California is 3:19cr-1850. 28 -2MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 eventual outcome, and to provide a therapeutic value to the community through an open judicial 2 process that instills confidence that justice is being served. 3 Under either Penal Code Section 1534(a), the First Amendment or the California Rules of 4 Court, the onerous burden to justify any continued restrictions on public access to these materials 5 cannot be met in this case. Moreover, while the sealing of the warrants at the time of their issuance 6 was legitimate, there have not been any on-the-record findings justifying the continued sealing of 7 these records after the date on which they were statutorily required to be made part of the public 8 court record. Thus, the continued sealing of these materials is procedurally improper, as well as 9 constitutionally infirm. 10 11 12 13 For these reasons, Media Entities respectfully request that this Court unseal the arrest and search warrants and all related materials immediately. II. STATEMENT OF FACTS On April 27, 2019, a shooter opened fire on the Chabad of Poway Synagogue in Poway, 14 California, killing one person and injuring three others. Investigators and prosecutors believe the 15 crimes to be religiously and/or racially motivated. See generally Baldridge Decl., Ex. A. Police 16 apprehended the suspect, Mr. Earnest, the same day. He is being held without bail. These and 17 various other facts are part of the underlying record of this criminal matter, and as such Media 18 Entities do not repeat them here. 19 Pertinent to this motion are the seventeen search warrants issued in connection with the 20 investigation into the Poway Shooting: warrant numbers E2019-413; E2019-414; E2019-418; 21 E2019-434; E2019-435; E2019-436; E2019-437; E2019-438; E2019-439; E2019-442; 60576; 22 60577; 60578; 60579; 60580; 60581; and 60742. On May 2, 2019, NBC 7 San Diego news 23 producer Paul Krueger inquired with San Diego County Superior Court Public Information Officer 24 Karen Dalton about whether search warrant information pertaining to the Poway Shooting would be 25 disclosed by the Court. See Baldridge Decl., Ex. E. On May 16, 2019, Ms. Dalton informed Mr. 26 Krueger that the records were sealed, and that a motion to unseal would be necessary to obtain 27 access to these records. Id. There has been no sealing order justifying a continued sealing over 28 these materials after execution and return of the warrants is part of the public court record. Because -3MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 the warrants were sealed, presiding Judge Peter C. Deddeh would provide no further information 2 about the court records. This Motion follows. 3 4 5 6 III. LEGAL ANALYSIS A. Penal Code Section 1534(a) Mandates that All Materials Related to a Returned Search Warrant be Made Public. California Penal Code § 1534(a) provides that after a search warrant is executed and 7 returned to the court, all “documents and records of the court relating to the [search] warrant . . . . 8 shall be open to the public as a judicial record.” Cal. Penal Code § 1534(a) (emphasis added). 9 Importantly, the California Legislature did not impose any qualifications or limitations upon this 10 right of access to search warrant materials other than the passage of time. See, e.g., PSC 11 Geothermal, 25 Cal. App. 4th at 1713 (“documents associated with the warrant are public 12 documents 10 days after its execution”). 13 Although the statutory right of access to search warrant materials is not absolute, California 14 courts have recognized only limited exceptions to the presumption of openness. The leading 15 decision is Hobbs, where the California Supreme Court considered a criminal defendant’s request to 16 unseal a search warrant affidavit. 7 Cal. 4th at 954-955. As the Court explained, the case involved 17 the “the inherent tension between the public need to protect the identities of confidential informants, 18 and a criminal defendant’s right of reasonable access to information upon which to base a challenge 19 to the legality of a search warrant.” Id. at 957. After carefully analyzing Evidence Code Section 20 1041, which gives prosecutors a qualified privilege to withhold a confidential informant’s identity, 21 and Evidence Code Section 1042, which sets forth the consequences of a prosecutor’s successful 22 invocation of Section 1041, the Court held that these privileges “together compromise an exception 23 to the statutory requirement that the contents of a search warrant, including any supporting 24 affidavits …, become a public record once the warrant is executed.” Id. at 962. Nevertheless, the 25 Court instructed the trial court to “take whatever further actions may be necessary to ensure full 26 public disclosure of the remainder of the [search warrant] affidavit.” Id. (emphasis added). In 27 other words, redaction rather than sealing is the appropriate means of protecting even a confidential 28 -4MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 informant’s identity. Id. Media Entities are unaware of any confidential informant issues in this 2 case. 3 Soon after Hobbs, the Court of Appeal in PSC Geothermal addressed the issue of whether a 4 prosecutor’s asserted desire to protect an ongoing investigation also would justify an exception to 5 Section 1534(a)’s statutory right of access to search warrant materials. In PSC Geothermal, the 6 subjects of an investigation moved to unseal search warrant materials in order to challenge the 7 seizure of items from their environmental consultant’s office. 25 Cal. App. 4th at 1700-1702. The 8 trial court had sealed the affidavits, ruling that before a criminal complaint is filed, affidavits may 9 be sealed if disclosure would adversely affect a criminal investigation. Id. at 1713. On review, the 10 appellate court rejected that ruling, holding that “[t]here is no exception in [Penal Code § 1534(a)] 11 for instances … where the search [warrant] is used to further an ongoing investigation.” Id. at 1714. 12 The court observed, however, that a prosecutor need not reveal the “identity of an informant” or 13 “official information” as defined under Evidence Code Section 1040(a)3 and 1043(b). Id. at 1714. 14 Even under such circumstances, the privilege applies only if a “court determines, in accordance 15 with precise statutory standards, that disclosure is against the public interest.” Sheppard v. 16 Superior Court, 17 Cal. 3d 107, 123 (1976) (emphasis added); overruled on other grounds by 17 People v. Holloway, 33 Cal. 4th 96 (2004); see also PSC Geothermal, 25 Cal. App. 4th at 1714. 18 This is an arduous standard. Sheppard, 17 Cal. 3d at 123; Torres v. Superior Court, 80 Cal. App. 19 4th 867, 873 (2000) (“[t]he official information privilege, once asserted, shouldn’t be sustained 20 unless the court is presented with a showing that the information sought to be protected is covered 21 by the privilege”). 22 Importantly, the court in PSC Geothermal, like the court in Hobbs, emphasized the 23 importance of “redacting the [search warrant] affidavit and sealing only that portion which might be 24 found … to be official information.” 25 Cal. App. 4th at 1714-1715. Because the trial court failed 25 to conduct the two-stage analysis of confidentiality and public interest and because sealing in PSC 26 3 27 “Official information” is defined as “information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” Cal. Evid. Code § 1040(a). 28 -5MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 Geothermal appeared overbroad, the court issued a writ of mandate directing the trial court to 2 unseal the affidavit subject to a claim of privilege and further in camera review. Id. at 1715. 3 In People v. Jackson, 128 Cal. App. 4th 1009, 1023 (2005), a case involving a media request 4 to unseal a search warrant affidavit, the appellate court unequivocally recognized that the public’s 5 constitutional right of access to court records extends to search warrant materials, and that the order 6 sealing such materials must comply with the constitutional tests NBC Subsidiary affirmed and Rules 7 of Court 2.550 and 2.551 codified. Jackson at 1022. The unique combination in that case of the 8 celebrity status of the defendant, entertainer Michael Jackson, the crimes alleged, and the ongoing 9 nature of the criminal investigation lead the court to uphold the trial court’s order sealing the search 10 warrant affidavit “until, at a minimum, the arraignment in the matter.” Id. at 1023-24, 1015. In 11 doing so, the court recognized that in appropriate cases courts can remove material from public 12 scrutiny if it would be so prejudicial as to put the defendant’s right to a fair trial in jeopardy. Id. at 13 1021. In particular, the Jackson court took account of the intense scrutiny in the world-wide media 14 the case had already garnered and the risk to the then-ongoing criminal investigation as evidenced 15 by the government’s issuance of 65 additional warrants soon after the indictment. Id. at 1205, 1024. 16 The court also recognized that the graphic and detailed descriptions of the molestation incidents in 17 the affidavit “would likely be embarrassing, if not devastating, to the minors.” Id. The unique 18 confluence of all these factors led the court to uphold the trial court’s order temporarily sealing the 19 affidavit. Id. at 1016, 1024 (“Here, it is the combination of celebrity status, the crimes alleged and 20 the ongoing criminal investigation that justifies sealing.”) 21 A proponent of sealing must show that absent the sealing order a “substantial probability” 22 exists that alleged harms will occur. NBC Subsidiary, 20 Cal. 4th at 1208. In the instant case, 23 redaction of identifying information for minor witnesses, if any, can adequately protect victim 24 privacy interests not already a matter of public record. And, even if the police are continuing to 25 investigate the Poway Shooting and/or other possible crimes of Mr. Earnest, disclosure will not 26 jeopardize the investigation in the classic sense of tipping the government’s hand to imminent 27 action, with its attendant risk of destruction of evidence, since the sole subject of the investigation is 28 -6MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 now under arrest. Simply asserting “ongoing investigation,” therefore, does not justify non- 2 disclosure. 3 The recently-unsealed federal warrants relating to the Poway Shooting illustrates this 4 principle in action. See Baldridge Decl., Exs. C-D. There, the magistrate judge issued the warrants 5 in April of 2019, prior to Mr. Earnest’s indictment in federal court. Id. But because Mr. Earnest 6 was indicted in May of 2019, and despite the ongoing nature of the case, the court ordered the 7 warrants unsealed in June of 2019 in keeping with the public’s right of access to such records. Id. 8 9 The existence of two unsealed federal warrants reflects the fact that there is a substantial public interest in access to the materials sought here. Mass shootings, religiously and/or racially- 10 motivated attacks, and violence at places of worship have all become tragically common in the 11 United States, and the public has a substantial interest in understanding the motivations behind these 12 crimes and obtaining transparency in the process of bringing alleged perpetrators to justice. Access 13 to the materials will also serve one of the core functions underlying our open courts jurisprudence: 14 providing a “therapeutic” value for families and community members. See NBC Subsidiary, 20 Cal. 15 4th at 1200 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-573 (1980)). 16 Because the narrow interests identified in Hobbs, PSC Geothermal and Jackson are not at 17 issue here or can be protected through limited redaction, and because Section 1534(a) otherwise 18 mandates that the warrant materials shall be made public after the statutory time period has lapsed, 19 this Court should unseal the warrant materials without further delay. 20 B. The Strong Presumption Favoring Public Access To Judicial Proceedings and 21 Records Independently Justifies Disclosure of the Search Warrant Materials 22 23 The California Supreme Court made clear that the public has a First Amendment right of access to court documents in NBC Subsidiary.4 Although NBC Subsidiary involved access to civil 24 25 26 27 4 Under California law, there is no question that arrest and search warrants and related materials are court records subject to the public’s and media’s constitutional right of access. In fact, Penal Code Section 1534(a) expressly defines post-execution search warrant documents as “public … judicial record[s].” In addition, both arrest and search warrant materials fall within Rule of Court 2.550(b)’s definition of court records, which covers “all or a portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court.” (Emphasis added.) 28 -7MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 court proceedings, the Court’s sweeping, unanimous decision cited with approval numerous 2 decisions upholding a First Amendment “presumption of access . . . [for any] documents or records 3 of . . . [judicial] proceedings [that] are filed with the court or are used in a judicial proceeding.” 20 4 Cal. 4th at 1208 & n.25. Moreover, NBC Subsidiary explicitly made clear that “the First 5 Amendment right of access to trials encompasses civil proceedings as well as criminal 6 proceedings.” Id. at 1209 (emphasis added). 7 Following the opinion in NBC Subsidiary, the Judicial Council voted to amend then- 8 California Rules of Court 12.5, 243.1, 243.2, 243.3, and 243.4 to reflect that, “unless confidentiality 9 is required by law, court records are presumed to be open.” Cal. R. Ct. 2.550. Under NBC 10 Subsidiary and California Rule of Court 2.550, a court cannot close a judicial proceeding or seal a 11 court record without first finding: (1) that an overriding interest supports sealing; (2) that a 12 substantial probability exists that the interest will be prejudiced absent sealing; (3) that the sealing is 13 narrowly tailored to serve the overriding interest; and (4) that no less restrictive means exist to 14 achieve the identified overriding interest. 20 Cal. 4th at 1218-19; Cal. Rule of Ct. 2.550.5 15 The strict sealing test enunciated in NBC Subsidiary is consistent with previous decisions 16 from other courts. See, e.g., Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983) 17 (public’s right of access to documents filed in conjunction with criminal proceeding can be 18 overcome only by an affirmative showing that the sealing of documents is “strictly and inescapably 19 necessary” to promote competing interest of the highest order) (emphasis added); Estate of Hearst, 20 67 Cal. App. 3d at 785 (sealing orders can be justified only in “exceptional” circumstances where 21 sealing is necessary to promote a “compelling” interest). 22 23 Because Penal Code § 1534(a) expressly defines post-execution search warrant documents as “public . . . judicial record[s]” and because the arrest and search warrants and the materials 24 25 26 27 5 California Rule of Court 2.550 outlines a five-part analysis, while NBC Subsidiary has a four-part analysis, but they are essentially the same. 28 -8MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 related to them here were filed in San Diego County Superior Court, the materials at issue are 2 subject to the presumptive First Amendment right of access.6 3 i. Any Sealing Request Must Comply with Rules of Court 2.550 and NBC 4 Subsidiary. 5 Since the adoption of then-California Rule of Court 243.2 (now Rule 2.550), any party 6 seeking to seal court records must satisfy the strict procedural and substantive requirements the 7 California Supreme Court endorsed in NBC Subsidiary. Any party requesting that a court record be 8 sealed “must file a noticed motion for an order sealing the record.” Cal. Rule of Ct. 2.550 9 (emphasis added). The motion “must be accompanied by a memorandum of points and authorities 10 and a declaration containing facts sufficient to justify the sealing.” Id. A “court must not permit a 11 record to be filed under seal based solely upon the agreement or stipulation of the parties.” Cal. 12 Rule of Ct. 2.550. These rules apply to both criminal and civil cases. See Advisory Committee 13 Comment (2000) to Rule 2.550. 14 The party advocating sealing must provide evidence to support its argument that sealing is 15 necessary. Oregonian Publ. Co. v. District Court, 920 F.2d 1462, 1467 (9th Cir. 1990) (vacating 16 trial court’s sealing order because the trial court had “no evidentiary support” for its belief that 17 sealing documents would “serve ‘higher values’”). The court must base its sealing order on 18 “specific, on-the-record findings” of fact. Press-Enterprise v. Superior Court, 478 U.S. 1, 13-14 19 (1986) (Press-Enterprise II) (emphasis added). “[T]he court may not base its decision on 20 conclusory assertions alone, but must make specific factual findings.” Washington Post Co. v. 21 Soussoudis, 807 F.2d 383, 392-93 & n.9 (4th Cir. 1986). Accord Oregonian, 920 F.2d at 1467. 22 Here, the procedural requirements for sealing have not been met. While a sealing order 23 issued at the time of issuance of the warrants is proper, in this case, there have not been on-the- 24 record findings of fact to support a continued sealing after the time set forth under Penal Code 25 6 26 27 With the passage of Proposition 59, effective November 3, 2004, the right of access to public records and the writings of public officials, including court records, also has been expressly incorporated into the California Constitution, Article I, Section 3(b). This right of access grounds “the presumption of openness in civil court proceedings with state constitutional roots.” Savaglio v. Wal-Mart Stores, 149 Cal. App. 4th 588, 597 (2007). 28 -9MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 Section 1534(a) in which the materials are to be open to public inspection. Accordingly, the 2 continued sealing of the arrest and search warrant materials violates California Rule of Court 2.550 3 and the constitutional requirements embodied in Press-Enterprise II. 4 5 6 ii. The Heavy Burden of Showing That a Blanket Sealing is Necessary Cannot Be Made Here. No showing has been—or could be—made justifying a blanket sealing order over all of the 7 warrant materials. As explained in Hobbs and again in PSC Geothermal, any legitimate interests in 8 confidentiality must be accomplished through redaction, not wholesale sealing of the warrant 9 materials. The United States Supreme Court, the California Supreme Court, and the Judicial 10 Council have similarly mandated “narrow[] tailor[ing]” of sealing orders. Press-Enterprise v. 11 Superior Court, 464 U.S. 501, 509-510 (1984) (Press-Enterprise I); NBC Subsidiary, 20 Cal. 4th at 12 1208; Cal. R. Ct. 2.550(d)(4). To qualify as “narrowly tailored,” a sealing order may shield from 13 public view only the specific information that, if disclosed, would prejudice the overriding interest 14 at issue, not the entire document. See, e.g., In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1066 15 (2006) (approving limited redactions, not sealing, of court records). 16 This is particularly appropriate in this case, where any privacy interests of victims 17 referenced in the affidavits can be adequately protected through redaction of identifying 18 information. Nor is there any legitimate fear that disclosure will interfere with or jeopardize an 19 ongoing investigation, given the incarceration of the lone suspect and the willingness of the federal 20 court overseeing a parallel case to release details post-arrest and indictment. See Baldridge Decl., 21 Ex. B. The prospect that disclosure would negatively impact anyone’s fair trial rights is also absent 22 here. Even in the face of a showing that fair trial rights are at issue, generalized fears of negative 23 publicity are insufficient to overcome the public’s right of access, particularly in San Diego County, 24 where there is a large jury pool. In Press-Enterprise II, the United States Supreme Court made 25 clear that “[t]he First Amendment right of access cannot be overcome by the conclusory assertion 26 that publicity might deprive the defendant [of the right to a fair trial].” 478 U.S. at 15. Instead, the 27 party advocating secrecy must affirmatively show that, absent sealing, there is a substantial 28 probability that a defendant’s fair-trial interests will be prejudiced. Id. at 9. “Substantial -10MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 probability” is a high hurdle: it is not sufficient to show simply “a reasonable likelihood” of 2 prejudice. Id. 3 Furthermore, the notion that publicity is inherently prejudicial, and thus justifies sealing, is 4 contrary to well-established precedent. For example, despite widespread publicity surrounding the 5 criminal cases of John DeLorean, Sirhan Sirhan, Charles Manson, and Watergate, courts have 6 repeatedly rejected criminal defendants’ allegations that their convictions must be reversed because 7 juries were tainted by prejudicial publicity.7 Similarly, the court in Press-Enterprise v. Superior 8 Court, 22 Cal. App. 4th 498, 503 (1994) (Press-Enterprise III), explained in overturning a sealing 9 of just 3 percent of a grand jury transcript that “even accepting the trial court’s finding that 10 prospective jurors reading newspaper accounts of the grand jury transcripts are likely to remember 11 these reports and may even develop a preconception” concerning the defendant’s “guilt or 12 innocence,” it could not “conclude that release of this material would make it difficult to find 12 13 jurors capable of acting impartially.” 14 These cases and statutes demonstrate an overwhelming acceptance of the strong 15 presumption that the public has a constitutional right of access to criminal judicial proceedings and 16 related documents, including search warrant information. Because there is no interest here that can 17 overcome this strong presumption, or that cannot be protected through limited redaction, if any, 18 Media Entities respectfully request that this Court issue an order immediately releasing to the public 19 the seventeen search warrants at issue along with all related material, including any supporting 20 affidavits, inventory lists, returns, and records the Court has relied on in issuing the warrants. 21 22 23 24 25 26 27 7 See, e.g., CBS v. United States Dist. Court, 729 F.2d 1174 (9th Cir. 1983) (in DeLorean criminal trial, showing of extensive media coverage was inadequate to establish the requisite level of prejudice); United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (court found that despite the reams of newsprint and enormous number of hours of viewing time devoted to coverage of the Watergate affair, publicity had made little impression on most citizens); People v. Sirhan, 7 Cal. 3d 710 (1972) (finding that Robert Kennedy’s assassin had been tried by an impartial jury despite numerous newspaper articles and broadcasts reporting he would probably plead guilty); overruled on other grounds, Hawkins v. Superior Court, 22 Cal. 3d 584 (1978); People v. Manson, 61 Cal. App. 3d 102 (1977) (rejecting defendants’ prejudicial publicity claims in what was one of the most massively publicized cases in California history). 28 -11MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS 1 2 IV. CONCLUSION By enacting Penal Code § 1534(a), the Legislature dictated that search warrants “shall be 3 open to the public as a judicial record” after they are executed and returned to the court. Courts 4 have respected this legislative mandate, and have recognized only very narrow exceptions to this 5 statutory right of access. Because any stated privacy interest can be protected here through 6 appropriate redaction and because the narrow exceptions to the presumption in favor of disclosure 7 are otherwise not implicated, the court should release the warrants and related materials. 8 The First Amendment provides an independent basis for unsealing these records. Because 9 the continued sealing of these materials after the time period set out under Section 1534(a) cannot 10 be justified under the standards set forth in Press-Enterprise I, NBC Subsidiary, and the Rules of 11 Court, and because no on-the-record findings have been made to justify the continued sealing of 12 these materials, the search warrants at issues should be unsealed promptly. 13 14 For these reasons, Media Entities respectfully request that the Court make the arrest and search warrants and related materials available to the public without further delay. 15 16 DATED: June 27, 2019 JASSY VICK CAROLAN LLP 17 ____________________________________ ELIZABETH BALDRIDGE Attorneys for Non-Party Media Entities San Diego Union-Tribune, NBC 7 San Diego, KFMB News 8, FOX5 San Diego and The Associated Press 18 19 20 21 22 23 24 25 26 27 28 -12- MEDIA ENTITIES’ MOTION TO UNSEAL SEARCH WARRANT RECORDS DECLARATION OF ELIZABETH BALDRIDGE 1 I, Elizabeth Baldridge, declare: 2 1. I am an attorney admitted to practice before this Court and an associate of Jassy Vick 3 Carolan LLP, counsel of record for non-party media entities San Diego Union-Tribune, NBC 7 San 4 Diego, KFMB News 8, FOX5 San Diego and The Associated Press. The matters stated in this 5 declaration are true of my own personal knowledge, except for those matters stated on information 6 and belief, which matters I believe to be true. 7 2. Attached as Exhibit A to this declaration is, upon information and belief, a true and 8 correct copy of the Complaint filed in this action on April 29, 2019. 9 3. Attached as Exhibit B to this declaration is a true and correct copy of the indictment 10 in the parallel federal proceeding relating to the Poway Shooting, United States District Court for 11 the Southern District of California case no. 3:19-cr-1850. 12 4. Attached as Exhibit C to this declaration is, upon information and belief, a true and 13 correct copy of the federal warrant for a search of IP address and metadata information relating to 14 an 8chan account in connection with the Poway Shooting investigation, unsealed on June 13, 2019. 15 5. Attached as Exhibit D to this declaration is, upon information and belief, a true and 16 correct copy of the federal warrant for a search of two Facebook accounts in connection with the 17 Poway Shooting investigation, unsealed on June 13, 2019. 18 6. Attached as Exhibit E to this declaration is, upon information and belief, a true and 19 correct copy of email communications between NBC 7 San Diego news producer Paul Krueger and 20 San Diego County Superior Court Public Information Officer Karen Dalton concerning the search 21 warrants at issue. 22 I declare under penalty of perjury under the laws of the State of California that the foregoing 23 is true and correct, and that this declaration was executed this 27th day of June, 2019, at Los 24 Angeles, California. 25 26 Elizabeth Baldridge 27 28 -1DECLARATION OF ELIZABETH BALDRIDGE EXHIBIT A IN CUSTODY SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CENTRAL DIVISION THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, CT No. CD281508 DA No. AEM547 v. COMPLAINT-FELONY JOHN T EARNEST, dob 06/08/99, Booking No. 19726575A; Defendant INFORMATION Date: _________________________ PC296 DNA TEST STATUS SUMMARY DNA Testing Requirements DNA sample required upon conviction Defendant EARNEST, JOHN T CHARGE SUMMARY Count Charge 1 PC187(a) EARNEST, JOHN T 2 PC664\PC187(a) EARNEST, JOHN T Issue Type Felony Felony Sentence Range Special Allegations 25 Yrs-Life PC190.2(a)(16) PC190.03(a) PC12022.53(d) PC1203(e)(1) Allegation Effect Life\Death LWOP +25 Yrs-Life Prison Presum Life W Parole PC189 PC12022.53(d) PC12022.7(a) PC422.75(a) PC1203(e)(1) Page 1 of 5, Court Case No. CD281508 Life W Parole +25 Yrs-Life +3 Yrs +12-2-3 Prison Presum CHARGE SUMMARY (cont'd) Count Charge 3 PC664\PC187(a) EARNEST, JOHN T 4 5 Issue Type Felony PC664\PC187(a) EARNEST, JOHN T Felony PC11413(a) EARNEST, JOHN T Felony PC1054.3 Sentence Range Special Allegations Allegation Effect Life W Parole PC189 PC12022.53(c) PC422.75(a) PC1203(e)(1) Life W Parole +20 Yrs +12-2-3 Prison Presum PC189 PC12022.53(c) PC422.75(a) PC1203(e)(1) Life W Parole +20 Yrs +12-2-3 Prison Presum Life W Parole 3-5-7 INFORMAL REQUEST FOR DISCOVERY The undersigned, certifying upon information and belief, complains that in the County of San Diego, State of California, the Defendant(s) did commit the following crime(s): CHARGES COUNT 1 - MURDER On or about April 27, 2019, JOHN T EARNEST did unlawfully murder Lori Kaye, a human being, in violation of PENAL CODE SECTION 187(a). SPECIAL CIRCUMSTANCE And it is further alleged that the murder of Lori Kaye was committed by defendant JOHN T EARNEST, and that Lori Kaye was intentionally killed because of her religion, within the meaning of PENAL CODE SECTION 190.2(a)(16). And it is further alleged that said Defendant(s) committed the above offense in whole and in part because of one or more of the following actual and perceived characteristics of Lori Kaye: Disability, Gender, Nationality, Race and Ethnicity, Religion, Sexual orientation and association with a person and group with one or more of these actual and perceived characteristics, within the meaning of PENAL CODE SECTION 190.03(a). Page 2 of 5, Court Case No. CD281508 CHARGES (cont'd) And it is further alleged that in the commission and attempted commission of the above offense, the defendant JOHN T EARNEST intentionally and personally discharged a firearm, to wit: a rifle, and proximately caused great bodily injury and death to a person (other than an accomplice), within the meaning of PENAL CODE SECTION 12022.53(d). And it is further alleged that the defendant is ineligible for probation pursuant to PENAL CODE SECTION 1203(e)(1). COUNT 2 - ATTEMPT MURDER On or about April 27, 2019, JOHN T EARNEST did unlawfully attempt to murder Yisroel Goldstein, a human being, in violation of PENAL CODE SECTION 187(a) and PENAL CODE SECTION 664. And it is further alleged that the above offense was willful, deliberate and premeditated, within the meaning of PENAL CODE SECTION 189. And it is further alleged that in the commission and attempted commission of the above offense, the defendant JOHN T EARNEST intentionally and personally discharged a firearm, to wit: a rifle, and proximately caused great bodily injury and death to a person (other than an accomplice), within the meaning of PENAL CODE SECTION 12022.53(d). And it is further alleged that in the commission and attempted commission of the above offense the defendant, JOHN T EARNEST, personally inflicted great bodily injury upon Yisroel Goldstein, not an accomplice to the above offense, within the meaning of PENAL CODE SECTION 12022.7(a). And it is further alleged that defendant JOHN T EARNEST committed and attempted to commit a hate crime within the meaning of PENAL CODE SECTION 422.75(a). And it is further alleged that the defendant is ineligible for probation pursuant to PENAL CODE SECTION 1203(e)(1). COUNT 3 - ATTEMPT MURDER On or about April 27, 2019, JOHN T EARNEST did unlawfully attempt to murder Almog Peretz, a human being, in violation of PENAL CODE SECTION 187(a) and PENAL CODE SECTION 664. And it is further alleged that the above offense was willful, deliberate and premeditated, within the meaning of PENAL CODE SECTION 189. Page 3 of 5, Court Case No. CD281508 CHARGES (cont'd) And it is further alleged that in the commission and attempted commission of the above offense, the defendant, JOHN T EARNEST, intentionally and personally discharged a firearm, to wit: a rifle, within the meaning of PENAL CODE SECTION 12022.53(c). And it is further alleged that defendant JOHN T EARNEST committed and attempted to commit a hate crime within the meaning of PENAL CODE SECTION 422.75(a). And it is further alleged that the defendant is ineligible for probation pursuant to PENAL CODE SECTION 1203(e)(1). COUNT 4 - ATTEMPT MURDER On or about April 27, 2019, JOHN T EARNEST did unlawfully attempt to murder Noya D., a human being, in violation of PENAL CODE SECTION 187(a) and PENAL CODE SECTION 664. And it is further alleged that the above offense was willful, deliberate and premeditated, within the meaning of PENAL CODE SECTION 189. And it is further alleged that in the commission and attempted commission of the above offense, the defendant, JOHN T EARNEST, intentionally and personally discharged a firearm, to wit: a rifle, within the meaning of PENAL CODE SECTION 12022.53(c). And it is further alleged that defendant JOHN T EARNEST committed and attempted to commit a hate crime within the meaning of PENAL CODE SECTION 422.75(a). And it is further alleged that the defendant is ineligible for probation pursuant to PENAL CODE SECTION 1203(e)(1). COUNT 5 - USE OF EXPLOSIVES IN ACTS OF TERRORISM IN SPECIFIED PLACES On or about March 23, 2019, JOHN T EARNEST did unlawfully explode, ignite and attempt to explode and ignite a destructive device and explosive, and commit arson in and about a church, temple, synagogue, and other place of worship, for the purpose of terrorizing another person and in reckless disregard of terrorizing another person in violation of PENAL CODE SECTION 11413(a). Page 4 of 5, Court Case No. CD281508 NOTICE: Any defendant named on this complaint who is on criminal probation in San Diego County is, by receiving this complaint, on notice that the evidence presented to the court at the preliminary hearing on this complaint is presented for a dual purpose: the People are seeking a holding order on the charges pursuant to Penal Code Section 872 and simultaneously, the People are seeking a revocation of the defendant's probation, on any and all such probation grants, utilizing the same evidence, at the preliminary hearing. Defenses to either or both procedures should be considered and presented as appropriate at the preliminary hearing. NOTICE: Any defendant named on this complaint who is on Mandatory Supervision in San Diego County is, by receiving this complaint, on notice that the evidence presented to the court at the preliminary hearing on this complaint is presented for a dual purpose: the People are seeking a holding order on the charges pursuant to Penal Code Section 872 and simultaneously, the People are seeking a revocation of the defendant’s Mandatory Supervision pursuant to Penal Code Sections 1170(h)(5)(B) and 1203.2, on any and all such grants, utilizing the same evidence, at the preliminary hearing. Defense to either or both procedures should be considered and presented as appropriate at the preliminary hearing. Pursuant to PENAL CODE SECTION 1054.5(b), the People are hereby informally requesting that defendant's counsel provide discovery to the People as required by PENAL CODE SECTION 1054.3. Sheriff ’s records indicate that as of the booking date one or more defendants have not yet provided a DNA sample to the DOJ database. Pursuant to Penal Code Section 296(e), the court shall order collection of DNA from the defendant(s) if advised by the prosecuting attorney that a sample is required but has not been provided by the defendant. Pursuant to Penal Code sections 296/296.1, if not already required from a past conviction, any defendants who have not done so will be required to provide a sample upon conviction of this felony offense. MANDATORY STATE PRISON INCARCERATION: An executed sentence for a felony shall be served by defendant JOHN T EARNEST in state prison pursuant to PENAL CODE SECTIONS 1170(f) and (h)(3). I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT AND THAT THIS COMPLAINT, CASE NUMBER CD281508, CONSISTS OF 5 COUNTS. Executed at City of San Diego, County of San Diego, State of California, on April 29, 2019. COMPLAINANT INFORMATION SUMMER STEPHAN District Attorney County of San Diego State of California by: Date Deputy District Attorney Page 5 of 5, Court Case No. CD281508 EXHIBIT LON Ema; 'tv?wwa :1 l9 FER-Y 2 PH 12: 5h mam. as. Res-51R ii Wain-Sm mat-MW mare-m.- ?31: .4 :68} :m?nx UNITED STATES COURT i SOUTHERN DISTRICT or 3 .April 2018 Grand Jury 196R1850RJS UNITED STATES OF AMERICA, Case NO. Plaintiff, I i v. S.C., Sec. 247(a)(2)[ 247(d)(l), and 247(d)(3) JOHN TIMOTHY EARNEST: Obstruction of Free Exercise of Religious Beliefs; Title 18, Defendant. U.S.C., Sec. 249(a)(1)(B) Hate Crime Acts; Title 18, U.S.C., _Sec. 247(a)(1) and 247(d)(3) Attempted Damage to Religious Property; Title 18, U.S.C., Sec. 924(c) and 924(j) Using.and Carrying a Firearm_During and In Relation to a Crime of Violence; Title 18, Sec. 924(d) and Title 28, U.S.C., Sec. 2461(c) Criminal Forfeiture The grand jury charges: Count 1 On or about April 27, 2019, Iwithin the Southern District of California, defendant JOHN TIMOTHY EARNEST intentionally obstructed, by force, victim in the enjoyment of her free exercise of religious beliefs and the offense was in and affected interstate commerce. The acts_of defendant JOHN TIMOTHY EARNEST resulted in the death of All in violation of Title 18, United States Code, Sections 247(a)(2) and 247(d)(1). Diego 5/21/19 Counts 2?4 On or about April 27, 2019, within the Southern District of California, defendant JOHN TIMOTHY EARNEST intentionally obstructed, by force and threat of force, each victim listed below in the enjoyment of that victim's free exercise of religious beliefs and the offense was in and affected interstate commerce. The acts of defendant JOHN TIMOTHY EARNEST included an attempt to kill, and resulted in bodily injury to each victim in Counts 2 through 4; the acts also included the use, attempted use, and threatened use of a dangerous weapon, to wit, a Smith wesson Model 15 Sport II semi?automatic rifle, bearing serial number ending in 950. Count Victim 2 Y.G. 3 A.P. 4 N.D., a juvenile All in violation of Title 18, United States Code, Sections 247(a)(2), 247(d)(l), and 247(d)(3). Counts 5?54 On or about April 27, 2019, within the Southern District of California, defendant JOHN TIMOTHY EARNEST intentionally obstructed, by force and threat of force, each victim listed below in the enjoyment of that victim?s free exercise of religious beliefs and the offense was in and affected interstate commerce. The acts of defendant JOHN TIMOTHY EARNEST included an attempt to kill each victim in Counts 5 through 54, and the use, attempted use, and threatened use of a dangerous weapon, to wit, a Smith Wesson Model 15 Sport II semi?automatic rifle, bearing serial number ending in 950. Count Victim 5 S.A. 6 D.A 7 N.A., a juvenile 8 Y.A., a juvenile 9 I.A 10 J.A 11 12 F.A. 13 A.A. 14 Z.B. 15 J.M.C l6 L.C. 17 J.C. 18 D.C. 19 N.C. 2O I.D. 21 L.D., a juvenile 22 a juvenile 23 M.D. 24 R.E., a juvenile 25 T.E. 26 P.F. 27 G.F. 28 8.6. 29 C.G., a juvenile 3O R.G., a juvenile violation of Title 18, United States Code, Sections 247(a)(2), 247(d)(1); Count Victim 31 a juvenile 32 M.G. 33 34 J.I-I 35 R.I 36' R.K 37 H.K. 38 39 A.L. 4O A.M 41 J.juvenile 50 0.8 51 K.T 52 S.T., a juvenile 53 N.T., a juvenile 54 A.T., a juvenile and 247(d)(3). Count 55 On. or about .April 27, 2019, within the Southern District of California,_ defendant JOHN EARNEST willfully caused. bodily injury to because of the actual and perceived race of any person. The offense resulted. in ?the Ideath. of All in ?violation of Title 18, United States Code, Section Counts 56?58 On or about April 27, 2019, within the Southern District of California, defendant JOHN TIMOTHY EARNEST willfully -caused, bodily injury to the victims listed below, because of the actual and perceived race of any person. Each offense included an attempt to kill each victim listed in Counts 56 through 58: Count Victim 56 Y.G. 57 A.P. 58 N.D. All in violation of Title 18, United States I Code, Section Counts 59~108 On or about April 27, 2019, in the Southern District of California, defendant JOHN TIMOTHY EARNEST, through the use of a firearm, willfully attempted to cause bodily injury to each victim listed below, because of the actual and perceived race of any person. Each offense included an attempt to kill each victim listed in Counts 59 through 108: Count Victim 59 S.A. 60 D.A. 5 Count Victim 61 N.A., a juvenile- 62 Y.A., a juvenile 63 I.A. 64 J.A. 65 66 F.A. 67 A.A. 68 Z.B. 69 J.M.C. 7O L.C. 71 J.C. 72 D.C. .73 N.C. 74 I.D. 75 L.D., a juvenile 76 a juvenile 77 M.D. 78 R.E., a juvenile 79 T.E. 80 P.F. 81 G.F. 82 8.6. 83 C.G., a juvenile 84 R.G., a juvenile 85 Yo. ., a juvenile 86 M.G. Count Victim 87 '88 J.H. 89 R.I 90 R.K. 91 H.K. 92 93 A.L. 94 A.M. 95 J.M. 96 R.P. 97 G.P 98 S.juvenile 104 0.8 105 106 S.T., a juvenile 107 N.T., a juvenile 108 A.T a juvenile All in violation 'of Title 18, United Section States Code, Count 109 On or about March 24, 2019, within the Southern District of California, defendant JOHN TIMOTHY EARNEST intentionally attempted to damage and destroy religious real property, that is, the Dar?ul?Arqam Mosque, Escondido, California, because of the religious character of that property,-and the offense was in and affected interstate and foreign commerce. Such acts included the use of fire. All in violation of Title 18, United States Code, Sections 247(a)(1) and 247(d)(3). Count 110 On or about April 27, 2019, within the' Southern District of California, defendant JOHN TIMOTHY EARNEST knowingly used, carried, and discharged a firearm, that is, a Smith Wesson Model 15 Sport II semi?automatic rifle, bearing serial number ending in 950, during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, that is, the offenses charged in Counts 1 and 55 of this Indictment; and caused the death of and unlawfully_killed- with malice aforethought victim a human being, through the use of' a firearm. All in 'violation_ of 'Title 18, United. States Code, Sections 924(c) and 924(j). Counts 111~113 On or about April 27, 2019, within the Southern District of California, defendant JOHN TIMOTHY EARNEST knowingly used, carried, and discharged a firearm that is, a Smith Wesson Model 15 Sport II semi?automatic rifle, bearing serial number ending in 950, during and in relation to a crime of violence for which he may be prosecuted in a court of time United States, that; is, the offenses charged j11 this Indictment set forth below: Count Offense 111 Counts 2 and 56 112 Counts 3 and 57 113 Counts 4 and 58 All in violation of Title 18, United States Code, Section 924(c). For SPECIAL FINDINGS Counts 1 and 110, pursuant to Title 18, United States Code, Section defendant JOHN TIMOTHY EARNEST was over 18 years of 1. 2. For Sections EARNEST: 1. age at the time of the offense and: intentionally killed the victim,' intentiOnally inflicted serious bodily injury that resulted in the death of the victim, intentionally participated in an act, contemplating that_the life of a person would be taken and intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim_died as a direct result of the act, and intentionally and specifically engaged in an act of violence, knowing_that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reekless disregard for human life and the victim died as a direct result of the act. counts 1 and 110, pursuant to Title 18, United States Code, and defendant JOHN TIMOTHY in the commission of the offense, knowingly created a grave risk of death to one and more persons in addition to the victim of the offense, committed the offense after substantial planning and premeditation to cause the death of a person, 3. intentionally killed and attempted to kill more than one person in a single episode. FORFEITURE ALLEGATIONS 1. Counts 1 through 113 are realleged and incorporated to allege forfeiture to the United States of America pursuant to Title 18, United States Code, Section 924(d) and Title 28, United _States Code, Section 2461(c). 2. Upon conviction of one or more of the offenses alleged in Counts 1 through 113 of this Indictment, defendant JOHN.TIMOTHY EARNEST shall forfeit to the United States, pursuant to Title 18, United States Code, Section 924(d), and Title 28, United States Code, Section 2461(c), all firearms and ammunition involved in the commission of the offenses, including, but not limited to, a Smith Wesson Model 15 Sport II semi?automatic rifle, bearing serial number ending in 950, and approximately 50 rounds of .223 ammunition. 3. If any of the above?described forfeitable property, as a result of any act or omission of the defendant: 1) cannot be located upon the exercise of (?ne diligence; 2f inns been. transferred cm: sold 1x? or deposited.with, a third party; 3) has been placed beyond_the jurisdiction of the Court; 4) has been substantially diminished in value; or 5) has been commingled with other property which cannot be subdivided without difficulty, 10 is the intent of the United S�ates, pursuant to Title 28, United 1 le 21, United States 2 States Code, Sectior:. 2461 (c), w'."iich incorporates 3 Code, Section 853 (p), to seek forfeiture of any other property of the 4 defenda:it up to the value 5 to forfeiture. the property listed above as being subject 6 All in violation of Title 18, 7 Uni'.:ed States Code, and Title 28, United States Code, Section 246l(c). DATED: 8 May 21, 2019. 9 10 11 13 ROBERTS. BREWER, JR. United States Attorney 14 ERIC S. DREIBAND 15 Assistant Attorney General Civil Rights Division 16 17 By:� AROLINEP.7-JA SHANE P. HARRIGAN PE'.:'ER G. KO 18 19 20 21 22 By: Attorney 23 24 25 26 27 28 11 Sections 924 (d), EXHIBIT Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.5 Page 1 of 37 AO 106 (Rev. 04/10) Application for a Search Warrant ----·------. UNITED STATES DISTRICT COUR I for the Southern District of California In the Matter of the Search of (Briefly describe the property to be searched or identify the person by name and address) Sch.net 9120 Double Diamond Parkway, Suite 5901, Reno, NV S9521 I '{;"'.: 1·: � �� ·'i t} ti rr ·. n.p� ;· 1;.I .'�11 !/:;; ,.':'! . APR� �r) ,,1• J..h-. 9 1019 CLERK US DIS IHICT COUHT SOUTHERN DISTRICT OF CALIFORNIA BY DEPUTY Case No. 19MJ1755 APPLICATIONFORASEARCHWAR RANT r.ASE UNSEALED PER ORDER OFCOUR I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason to believe that on the following person or property (identifY the person or describe the property to be searched and give its location): SEE ATTACHMENT A (INCORPORATED HEREIN) located in the ------ District of Nevada ------ , there is now concealed (identifY the person or describe the property to be seized): Sch.net SEE ATTACHMENT B (INCORPORATED HEREIN) The basis for the search under Fed. R. Crim. P. 4l{c) is (check one or more): rf evidence of a crime; ff contraband, fruits of crime, or other items illegally possessed; � property designed for use, intended for use, or used in committing a crime; 0 a person to be arrested or a person who is unlawfully restrained. The search is related to a violation of: Code Section Offense Description 1S U.S.C. 247(a)(1), (a)(2) Intentional obstruction, by force or threat of force of persons in the free exercise of 1S U.S.C. 249(a)(1) religious belief, resulting in death; willfully causing bodily injury to persons through the use of a firearm because of the actual or perceived religion of said persons, re The application is based on these facts: SEE AFFIDAVIT OF SPECIAL AGENT MICHAEL J. ROD, INCORPORATED HEREIN. ff Continued on the attached sheet. 0 Delayed notice of days (give exact ending date if more than 30 days: ----- ) is requested under 18 U.S.C. § 3103a, the basis of which is set forth on the attached sheet. QlAt\""'f;\ \z.;c.o'"j"' � � Ar.>11 l -Z.,"\ 11Ail'1 �& .fvt)'!\,.¢.DQi t �doiio +t,,, f-+W. r.wo.lf C�� tr" .Le1j .SV'?"W a E vi en'c'e estruc f 1\.. I Genuine Risk' of l . - .1.. 1 o: Jin 1 \Ny1(.r-:: ....; l ..,.of-� Uf "-�' . .'.' :"-'7 } :-;.;,.;t. '.t;;� ; •· r�-���-J;� _}j�f:"IZ"� t1) F'r�!'l 1\irliili ;;t 01' 'm'rle � q �,, � ·� 'll'l:ii eitninate rnuslim dlrug-deam, �sell.� li:li 1De i);i(fs,_ """' . "1,1 r' •-�1 "'lim ,.. .,. ., ... ,., .... ..� ... ......,_,,. . ""''' )1,.. ....... m . .. .... .. -·--.· . i,;,P.nan)lmous OO'lff'i,9 Us.aQ oe;.1.1 ::30 ID: SS029G No..13:t92485 :'"·n�:.-o;;•i;,:1 :tt1a11L'4i&l � Fuctlng ·� .-e !J\e laSM. �·in M 'll'G dW!Me!. I c:nt ���him ft!efe. Fucb'lst .eman Lillltnonymou:s No., 13.1192417 . · 04J2l'l'HI ·�Sal} Ol!i:42:21 J�:�:i\l�.A@:��- ;,.. i_l·{,!:,@�d!!h. ID: Qlli!558.1: f Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.24 Page 20 of 37 ···- · ?· ·· [::JU:n!&p�red i!)y lii!t!'illit shocitlng musliims AnO�nilo!lo!!ll· 041271191.&il) 00·:39!26 llD: 550293. :�-��--\�1.;;9���;.:n .f :�_:�J-�._·1 �·�,, ;-- ;�;�.: ;;_:_,;q--.::�:f: :��_-,<�_t:;.�i�� '-·:!:_11;: �-�'.e�'2 ::,:to·\::t�].�n :!:.=::1-..�_l-!�':�. :�=--1-�:,�;�:� �->";'"���2.;:,� j.$hpw .ti..lil Poots.] r��if�t�h 'Th-:e.ad) fremoo 1'rieilild .0'f •mme ·&er!! me #tis, be·� ·ii11 ·nnina1B 1;r11,;t11•m d1i\19.cle•$.. -.tho· HD �. !Ci '!he ·litid$·. Kill )'DLir looal muslim drugs. � Eiv� l;:!ll1I d<> �� ·bl· lhli$. � UJ'l;no�mO!.!$ 04.IV'19 CSIQ 08:41 :30 !Ii); �\.J No.13.119.MBS '>>Bl�� '""'1 $1 ®480 ·�· Fu!iting·�are bl �.!Mi·iin NIJG · �. ·t:.l.W ·f.i!CIOr!g � .._,. "*"· F� ·Sd'ian I �IW\mOUS (M.1'27tii9 �.� (18::.i\2:21 ii!): Q66SS.1i No.1:H924111 ,.,,�,� �Ol'IJAl!OU!& No.. tS:�924'92 ,. i:ir?<�r!i 04127Hl!I ·� 08:.'43c41.ID: ssm93 >zi>13J!R487 � yol!•lfeto�.l!ill:MoilcJ.-•�. Relard. Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.25 Page 21 of 37 ••• ? · . il,.;l'mol'l')l1moo:e. IMl27Nr9·lSai)1111:1:4 :30 ID:� No.1!192485 �l� "'"'131��· ·� �·...,91e1!1$1:11111J•lin1h$11'G�.1 ,.� ..... him ham. lfuctiitg 8di'lilll ' (M.121if19ls.al�08\.4221ID:066581' �'lm"�l!,.f; Nod 3:�92481 :»u1�.;&.; »1J.t9:JS.1.� jef.ws •delO"! lllaWe- fllieili(\.1$ �nrmows 04i'Zftm9tsaQ�'-'1 n�.· . N0..13119Z492 �0!1J1Fff!ct 08:45:29 ID.: :2611il'J No..131!92502 �J.:!i:':� ."'>13122496 EM�. 1 wiv.e os.�·�.� �·Ot mara. a mlll!i.lim. (esperfdf a Sill�) i!!i !SCI stupid Ibey •Dartt da· 11!1Cldl · harm.. �llNS.WDl!li9f�(ll8:4S:33 1):� Nc>;1$19!SOG ..!all@Sll: � "?1339a!)2 »t:Ufi?AA§ . How l:Clmp Wdiim hlli'lf? � !(l!lllliill -� . � � bt lllldit .. 1'>'d! � IH264 n:Olfl!ll MC 'siJreanO!'fl: �9�,m!)Y:I· No..13·t9251.2 041271i'9 1Si!Q08:48:34ID: 996225 ...B,�4J• """1®1929® Thlllt !iBM!!l ID �.'!hat your 'lrii:leo· has dual audiil. YOO ha'fl9 llH�· C!1l8 Of lhll iilUllil) *'8ams out U$if!g �Oil w Q 4 . . t>••• . ''°be *'* Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.26 Page 22 of 37 · ·· . o.m:ll19 "IC!-� """"" . .,..... .... �OjA Nr;1.. t:J1� iic.,.. ..... · · ·.. . . · · .· . O&:G$:o.Le--­ . · . . 1. _,.,. Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.27 Page 23 of 37 ><:•"li31E1:2 illlDIT . �!'!!Qftjj'.mOU$ 04.l'2'fr:i:9 CS!il) OSc.516:01 ID: Moell!il· No.. 1.�111ml2 F:.- �1' �114�44�'.·' JRili �.�t!i�, Filit� am��\lli2··: A i!M'tlG. l'A�. �t:::lA!a , i'��� ft'J!l!i Fili&� i$b9d'.191ii1!lfW$!!·'' .illg 1141 $5 l!iA, Z<>l!H� · nu�· """]3i:W3 .· . . . . . .. ... . Wllal!1 hll · fLldt lihooiiiig1 si)!IB! 11$ •llii;. You bll:!w . 81 •�Hsuill'rimolilill imcn ori.s�· eo . . . . ,,.. _...... �- � ;'" - - - - . . -- . . �.ie1 :shGl . --- - -- ---·--- ----- - - -- - fDe�.C@eali11�-·Jpr!C!Wf. 2Ail21•• 7:5;n, . . - 1Dm]�1'i� ill!! ·� . . - _.· . .91.q, Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.29 Page 25 of 37 i;:�r ,,,,.., J1 !J!l52J dldi lhe �lilt�:? The fir$!: 'lftlleo, 1$ �· gl.4n ·&ihat noises . 00! 00 CiOOllil!ld. and ·Iha· SSillllll1d videc l«iis lilli111 jl:!� � 19 1rno ilhl8 i'.ligb1. �'OflY•tl'iOU� 04.i'nH9 !6a) 09,'.(J:1';32 IO: 26111113 ND.1 ::U92561 Fiie �]( �tme!·1M'!'��� · .ms {N.86·l'lllll el"b7!1i7.. e121e1. """1�1!!!l523 A.b!&OhJllll !OiglndL �onymous No.13:1192$6:2 04.!'27f'l91Si!C� 09:07:.415ID: cmas � "'""1 J 1 !i!ll56D TI:!h i IM1!IS: .El!!Ulig �nonymou!& iiio.t31i92$65 myself lh:all. ll!IO 04,l"l7'19 (Sire� 09r0£!:l1 IJI: 6!Jldl:J4. ""'"" ""'""'-":·, ,..,_ •- _,.i.. ..,,,.. •':'"' ""• ' """"' 1--· li....,."" ,.,.,,..,.. .•,, ,..... ''"'"' - .,_ ��-· .... un ....""­. .., · 1""" . . � ·� a ,..,i'!'Qm,I�. · �nonymGus No..131192008 04/.2:1119 (Sal) M:09:29 ID: 54dl!li'9 �:'.:P��!e ��.::tr.·.�� :'.:1:!.il.l�c�· i•:•J�l'2�l"l '. "'·;;.!j;::1 �lrt.:� !Shtt(:f, �-1J ""'�h·;--1'? No. The IJlllY'i jusll ·liellq oft hwol1il;s.. · Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.30 Page 26 of 37 .d .'°. ?• .,.,.-,,,_.W,NriiJ;! il'bJ:i I was 8$k.illl9 � tl'ld liXI �f!ODymCN!& tto. 1 31925$$ �1'111 9 1(S;al)Q!i;08c31 ID:. lflll!ldtJ4, · Ret1iiodetr ID o.mi!1 pi& &l:ili. lilB tis� Tor unlia!6& JOii ..,. . •Wsit .� �. �M�mli)US (M!Zl'M9 lh!J1 l)l9:00•:2$ It): $Sd8'1'9 ND..13,1t92568 :-:;.i·;:;��r�� "'"' �J.!-&�i,E .:.o:�'! ;ii: :;:z�. ;J"J;l�.i��.Q ':."'Jj1;;J shcK��: a� -3/'")�h_ _;,:rf�1(t· No, '!'he guys:� •lel!mg olfl ·hlt� Ujl 04ml'H!I i$Ml09:09:3Q tO; -1� No.1319a9 fil!EI ·11'.l�Jc 2bbf51X � · ...� �rt;!.il m �:5'1'4 ..:zw.2i11. rt>:>13.1!.!12:52� M111&irns and .iillilbs (Sillld!�I onedeus.!ii�· 1�nOJIY!fl!l01.1$ No..13192511 can � my dick, !Mll71"!i9 �6.MJ• 00:10:.12 ID: ·iM!C!fi4. Tal1l'lllnl ·Wi3led inlD a cmwded illBlll iiOO sh:JIJ· lhem. 'Ybur !Judd!' fa; doiDjJ � tiief stit.. · MAr1cn111111cus il)iJ2'.l'M9 �Sall• 09':11)1,36 iO: 2die262 No..13,t92Si'3 Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.31 Page 27 of 37 ·· .·; ..··.�· · · ,- -. : ·�·-�-�: . 1'HE fUC.itl CONRilllJCftClllil 'll\llUllllE: ,_. ....,, ___, 'fiiiiiLil Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.32 Page 28 of 37 iii* �nan¥mOUS '94127N9($81)·14:fi'.:: 18 1.D: :bca9 ' . Nio,131!Q990 . ' .. . ' ' ' ' ' ' >>1 3·193Ui fllalige ...,. mume � � were . . . · alnilostal · OO . � ib)' . P'O� - >ill-13,19Z§Q1 ' . ikyS ym Qimafie�, ' ' . l:>non.ymous 04tn11·1 (SS!) 14J02:23 1D:19efe38 . Nlo 1.("1 9'3991(�1�1.�ti' .. . .. . >>13:1 Pil2 . Welt. I: am, in an eogui&Uing PAJlli&lilcs light now: In a. . couJJe years \:It 11•111,m;e stic1,M1iiilIQ! like that. .. · Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.33 Page 29 of 37 �oosf!'C;.t?·.�g (Saij 12::t5:58 •IDc,.12 · · No.1311.9mia :>:"I�� ""''Ji·� 21�1lm!! . . . . 1".·ll�'l .. . �1j1!nDD ·�· . oWl�!ill -f12�11;,tO .· - .· - - ' '.\\'lliah ·�Nit llD� 2d1aGS - ' Mo.:13�· »�%1!t:3>!;3,? . . . i�l•...• """'.,!,1/!lm� ��WJtlf · ·� · ·��.IC ��a.i11a11fi�.:ilf!lha m1111t111Jc 1 ,.n· . . . . . ".»..,.��,.,�-;;,-;1. �·-IGC,.'i",.;,������c�:��-·�"'"""'�'�4'<'"*"""'""'""..., "'�' �Ml9·ts.Q12=1�lJ:, �. · �nJl!ncm No.13t!l3:252 "'•1:!119:D! 'O•U'!l� ,,.,13� · . . . �33Ji932!1iB . k��l� . � �.!i . :>Pwblln\1��24!, iii! ·�� :2'!llt . . S?52lPI� Pfll f ��ZS, :K>Ft� c tt:.srlo � (Y.:""r �n9($af�12: � . . . NO..t31 5m54 1 . � .1H1o12 . >�t3i��. . . . . · li ll!d llll!l'1! ld·�·�ll;il;!liQ �nymHl'2:7!ftr1 ·{Sill) t2:t'l\Z49 b� . NO.1•Ji:HBZ59• . . Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.34 Page 30 of 37 .d ?11 1�no!'W'mous 04J271'1,9 'Silll' 12:11:.49 ID: �, No.i319l2$9 file 111'!i11&K S2003l&'9d i 5®37'.'ii- ·:,P-!191 oz.z.a "2. �1. eat "'"'1'itcra:o;.� � � -·· ·· II.'$ ·'fo191Y ml;ICft W!i.'lii!fl '!ID!' �� li'le P*· iirfliiir � '�I· . llJ!!I -· ���' , . . - - ·� ....... .. aboui! .... .. ......, � «un'a;s" �t )'!Diii shoLlld !ilillt geitiig ,IJf1!PIHCI. He doe!in\ hok:I ·batik ·lfom �I� �imd 'llilm1&. and·pamiS itl � � �. Ct!td:$ itli .- 8 :j;lllllJe$ fl'!!!inus his 9'gmal\lre) and li!iiat'$ me � 1ir:ct w.in :ii. llO De. �­ Tamimi wali a imch rntll7EI• � Mihlr. andl qlkOll lh� 'Nti � �0(111!$$ '� !il'!Olit 1 . - · - * •ld!.ld!i.�'11:1� lle)ng·--·i:ll� � jj1 ·lirley llSfll� ·� a:lnit,1' wtrr he did what he did. ' �.'s liorMi5t p . ' .. :oo i& !';§�and l'ti;S we3kne$S.'" no� i$ ·�·IC> ilN:! ··al'!(! BUddeNy beoome SMlilB al! 1be .!IQ, . �.enymous l)U?i'i19 tSatJi 1.2:17:$9 Wt 5eec$2 No.1 :!U93261 >•Dl� >>ja1� Firal lltlil'ig I �lldl at m. ihi9' ... . U'iiillg Is a LMP ll!I ·- � ro tnend a f� El!OOl!lUl'l: 'kl IJUt � pe!ltlle. ll'Si 8. c1glawnigg9r laitk,. b!.ll..,1tll!l!ti. �- U\)tn6nyimous (M.1271'1!9 C&!Q 1.2:17:.59 ID: 73ef6!8 No.13,t!l3262 .»i:!il�cJ. file,l)!iid!>K c53a'l'd1l!Sd74253ll···.weltlm1 �161r.Et �.l::Z ���}!�H'itl �OlflQll (loop] Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.35 Page 31 of 37 •II ?·II �any.mol.is OO'lfn9 ($.fd) 12;19:2!11!): 000000 No.131:93.2t&B ::.:o>:131Sl3Je!.6 .An� 001 �at :lemili .oo b or ii wpn· ilS playing - � � ib!Blbre �y1�MdClit !IWllti :lire heifll!., dont'I .>>':1311ii!l252 ::0:.-111��.£! He saldihe •�tftat:� ��Tarrant naloow. so it &1ifl .� ·• �nan-1.mous i(Ml.2'.1f19 (Sal} 1.2:19c32 IO: Cl•'.7:8285 No. t:J.t93269• �JI'.'..��� �::.'2I� Ale· •1'.rm1c:ic: 1"1�:2fflb:l·lba ·· cPfl!�1 lflli& n•. 11!2!l<24a&, :irs:a12.. . ;;..,,,, ·F""""' " ' ? "'; ";·• ·-;. ;,Jl!i , r H•'>'·""-' « r'-"- ,m;-i' .rro.-·'U "'"' ..,_-,.>& �::.�: _,,.,',_"". "" ., 'll'ii' GUYS �o�.mOl.i$ OU27ri.9 iSa11J112;�9-;35 IO: dOll$8 . Na. t31r93271 fili&·m!:\l'tt1lliltol!ni.J11J&•1a:1'1l8. ���J1jt!_1��1 . " Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.36 Page 32 of 37 . 12.:26.., ••I - -=- I . !II .· - probab111 to llvow lllfl! Ille � job mo.s.sadJ retards tllaiming tiJ!TMl didn't �the jaw l1ilili ilrl• a Will:f he would lbe a "1111 �10 �#lb·� mas.1erpiece �n0111)1!Jl'!IOU$ , ·IJl.V21Jt!jl (Sail 12;20:20 liD; Ho,1 $.119:12115 ,..,1:;,1'"2;."'"4 ' a.q�2 """1 lit9»i5f: Read lite admll5 he�'tbe·�andl memas St'Bi �cn,.mous. Oiu.3'.i"t'l.9 ISal) t2::20:l2 ID: � No..131193217 .. r;i;.¥� �1a:hm§.£1 >>1 :i1 no::12 ��it. ha!tt' we � ·iifte· tire'l' lUltnoll!llmous Ml27f19CsaJi12:22:04 ID:.Dllca1 No"t3·1!!W'.82 .�:1.;i:!i'J.t"� �ti!!:iJ'iymli>Yt. Q4.1'27M9 ·ISali� 12;22;06 10; 018285 . No..13.;,93283 filiil• i:'l,.i�j( ?�!�.!,�.11�,!.���.i;:; ;,�J>W� i13"1!1!8. •-.:1m. M&:"81. �.....Ol!rui'jj�1"!!!91 (!11 I•= I' M1ulltiple peopllegunned down al Po.way Synagogue,. police search for shooter : - Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.37 Page 33 of 37 12.:26"'f �li0'1fYm!\'l!Li$ 04ll7rt.9 'sM) 12::1J:OO ID: 078285 l\IQ.131193288 File •(!1•\'.l SAV If Wl1M ME Gilll'l!':S: HAlllJL JOHN: '"THE EARJNEST'" •EARNEST! "'"'1$193\27.2 ·,...,;3;.my.�. . >>%'3;1:1 � rMW - �ii'il!Silfldilgo' .... .. UlfmoD)ilmous OU27l1·9 QS&) 12:23:24 ID: S.71ddi No..1J11932:91 �OD)i\mlOU:S 04.l27f1:91Sal31 12-.23:51 H>:. 5eer::52 N°' 13·11932941 ·� �1 dOi!lle � lli!E s� !!heh. Ata mosque in Caiifomia, �. '!Wdos. oo :o>:>l3t�1'6 �·l ftir �' lhalL ,.,.u, g-"J:241!i l'fi:lu] Do YoU• glJ)"Si Dllnk we � � "'Carl'11 O;imer; the l:llomer" liC!llllliilOO? Is he •00 Iha lll!llYe? Sieve Wer'blj @s.'lf!'l.'ewerby .28629•.�.• Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.38 Page 34 of 37 12:2a"f . ·s• n: wm-1 ME. GUYS.: ltML.JOHNI "'THIE . · . E.MN ESl"" iEAHNESTI' . . . - -· �OlilS .IMl'lttlil NO.tit93291 . . 'f�t2:23tM ID: Minidd l'.Jid he lii.i1S118"iln ill �lllfM n!&· �91(Silq12;23$1D15ait52 . .. . �1:3',amMI >>j;$1iDUl . · .· . ·. .. ·· ·Z'�•, st1t��---11t· mo&quii m .c•ril11&.�. ... · lillfl · · !":Ji1tm1i�··�� . . ·. �:t31ill24B. ... · . 'l)oyt;MUi�tirlll -trave�..�··O!mef b . '� i\liiillil li iGi'l'hi.heaiht�?. · �� Ml27N9f$al)��!mil!l;. OIXIQOO . No.. 1:311/13295. :>:�i:Ji� · · . �ly·ihlswB!ir,D .. ..... . . •Siave ·� �lllO . . Slr!ve'�Rl!ilrn!-d�. .,, . _ . . . ,, ·.· - - . .. . �lJ!ll lO ID)!- � .. .JllJ!d .. 1!!in,m11110·. -··lhe����ll;M . . � -·&ilidlhB&l!""1111if llBSibeilini� . . .. · ' ' �-i#l!f�lll!:Ui�· : - ' - - - -. - '. _ ·.. ·· ,· ·. - ��bChahlil�PO.�,;�JW!Si. · ·. actondl!l.·l'll San�illifln:ll.ll' l:lumg• ..- ·�.�.AA��;;;;!lhll,.2dM'en·� . .· .·� . 2 dlldlll!ln! nmmt -� ' WWWiMillf YIS Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.39 Page 35 of 37 ""tS1i9321'7 . >We; • 'libu· hiilv8ifi1 ,d!IJDB 1shit 11!!E · liflw :illfli llDi.. M a •!M$1·11i11 in Call'DirrU.. , app1� 1 . � °"" >>'!iS1•mr5·!l'"•••Wfr.li� l' lhaaL ;>;>'lill'm9 � '' '1Do)'Oti1-111im Wl!lhni8'���111Mi DoMW' �'tll he m'M l'll!CWe? . · �llll Cl'W:i> M1'21:/li9 fSilQ 1:2:24fil' Ilk . Oll!lllOOO Ma.13193295· ><•Iii-. · �If 1lllli& WM !JiOl l!!ili tii.fl8Ui1igt: .. . ' ,.....""" . . ·. .· ' .' . . . -,. · adei,�• � ' . ' . ' '' . $1Ml'�Rlt1111ullil:ISl!m!i._ · �1.ti)q. •.il-11141gul .. hslfi11\11ihl •!J:)· lill ·l!dlam'firl1�d'Poaay�l!t;"1!iw!· ·.,�-Uid��-·�·. . . ..... .. . • ....... '•1·. 1"¥1.:....-1· - . . · . ' . ..... �..-... I�... ,�rldli!lbtdlhrth /¥?#. --_ �-1. � -· : '°-� . ,. . . . ' '� I 1 . - +," ' . �!--M�olPfM.,,C.... Just ,� C:ltr. of�Dliigo !�. !lufrig·. � li!l!ll'!iillll ·'liil. li!•.Glii;i.,� � 21c;tiid11a1 �L · , · · 2 dli1dfran, Milfno, 111i1y� iis:ilaiplilJ � 'l'-- � 4e267a and No. 13192921 and all postings by individuals wftti restiendeel to said 16 Case 3:19-mj-01755-JLB Document 1 Filed 04/29/19 PageID.41 Page 37 of 37 1 2 3 4 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENT B All information, including but not limited to, IP address and metadata information, related to Schan posting with ID 4e267a and No. 13192921 and all postings , by individuals c� � v;r�G�d to said posting and/or oemni:ente« about said posting, as EXHIBIT Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.5 Page 1 of 23 AO 106 (Rev. 04/10) Application for a Search Warrant UNITED STATES DISTRICT C for the Southern District of California In the Matter of the Search of ) ) ) (Briefly describe the property to be searched or identif.y the person by name and address) Case No. ) Information that is stored at Facebook, 1601 Willow Road, Menlo Park, California 94025 j CASE UNSEALED PER ORDER OF COURT J 9MJ 1 7 56 APPLICATIONFOR ASEARCHWARRAN I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason to believe that on the following person or property (identifY the person or describe the property to be searched and give its location); See Attachment A located in the Northern District of California ----- , there is now concealed (identifY the person or describe the property to be seized): See Attachment B The basis for, the search under Fed. R. Crim. P. 4l(c) is (check one or more}: � evidence of a crime; ii' contraband, fruits of crime, or other items illegally possessed; 0 property designed for use, intended for use, or used in committing a crime; 0 a person to be arrested or a person who is unlawfully restrained. The search is related to a violation of: Offense Description Code Section 18 U.S.C. § 247(a)(2); Intentional obstruction by force of persons in the free exercise of religious belief; 18 U.S.C. § 249(a)(1); Willfully causing bodily injury to persons through the use of a firearm because of 18 U.S.C. § 247(a)(1) their actual or perceived religion; damage to religious property The application is based on these facts: See attached affidavit of ATF Senior Special Agent Matthew Beals ii' Continued on the attached sheet. 0 Delayed notice of __ days (give exact ending date if more than 30 days: ) is requested under 18 U.S.C. § 3103a, the basis of which is set forth on the attached sheet. ULia ,c;__� 53\+tW\!\_,,� Ji.pplicant 's signature FBI Special Agent Maria Solomon Printed name and title Sworn to before me and signed in my presence. Date: Judge 's signature City and state: San Diego, California Magistrage Judge Jill L. Burkhardt Printed name and title Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.6 Page 2 of 23 ATTACHMENT A This warrant applies to information associated with following Facebook accounts: Facebook ID Account Number 100027636555708, with Facebook User Name "John Earnest"·, and Facebook ID Account Number 100005829157939, with Facebook Username: "John Tocatina," that are stored at premises owned, maintained, controlled, or operated by Facebook, 1601 Willow Road, Menlo Park, California 94025 1 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.7 Page 3 of 23 ATTACHMENT B I. Service of Warrant The officer executing the warrant shall permit Facebook, as custodian of the computer files described in Section II below, to locate the files and copy them onto removable electronic storage media and deliver the same to the officer. II. Items Subject to Seizure All registration information; Phone and associated devices; Trusted devices; Deleted friends; Last location; IP history; Stored video and audio direct message communications; Any and all accounts associated by cookie; User Names and profile names; E-mail addresses and passwords; Any and all live stream video associated with account; Profile information; Friends information; Private messages in the user's inbox, sent messages, trash/deleted messages, notifications and updates involving any and all user; Chat information in the user's inbox, sent messages, trash/deleted messages, notifications and updates involving any and all user; IP logs (which includes the date stamps of the IP logs at login), initial login IP address and account activity and other information including name, address, phone number and other screen names that may tend to identify the user; and any other files associated with the following accounts: Facebook ID Account Number 100027636555708, with Facebook User Name "John Earnest"· and ' Facebook ID Account Number 100005829157939, with Facebook Usemame: "John Tocatina," (hereinafter, the "SUBJECT ACCOUNTS"). The search of the data supplied by Facebook, Inc., pursuant to this warrant will be conducted as provided in the "Procedures for Electronically Stored Information" of the affidavit submitted in support of this search warrant and will be limited to: a. Communications, data, or attachments relating to the research, purchase, or acquisition of firearms, and the research or manufacture of incendiary or explosive devices; 11 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.8 Page 4 of 23 b. Communications, data, or attachments tending to identify others involved in the criminal activity described below; c. Communications, data, or attachments third parties with whom John Ernest discussed the criminal activities described below; d. Communications, data, or attachments relating to John Earnests' motivation and bias for committing the criminal activities described below; e. Communications, data, or attachments relating to the research of, visits to, or other connections with the Synagogue located on Chabad Way in Poway, California, and/or the Dar-ul-Arqam Mosque and Islamic Center (the "mosque"), located at 318 West 6th Avenue in Escondido, California; Communications, data, or attachments relating to the research or viewing of news articles and reports about the arson that occurred at the mosque in Escondido, California on March 24, 2019, or criminal acts committed by other individuals involving criminal activity described below; f. g. Communications, data, or attachments relating to recruiting and inspiring individuals to engage in the criminal activity described below; h. Communications, data, or attachments relating to the whereabouts of John Earnest and any criminal associates or co-conspirators at the of the April 27, 2019, shooting at the synagogue on Chabad Way in Poway, and the March 24, 2019, arson of the mosque in Escondido, California; Communications, data, or attachments that tend to provide context to the information described above, such as direct messages sent or received in temporal proximity to any relevant communications, or communications, data, or attachments tending to identify the user of or person with control over the L SUBJECT ACCOUNTS. lll Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.9 Page 5 of 23 during the time period from January 1, 2017, through April 27, 2019, which tend to prove violations of federal law, namely, intentional obstruction, by force or threat of force, of persons in the free exercise of religious belief, resulting in death, in violation of 18 U.S.C. § 247(a)(2), willfully causing bodily injury to persons through the use of a firearm because of the actual or perceived religion of said persons, resulting in death, in violation of 18 U.S.C. § 249(a)(l ), and damage to religious property, in violation of 18 U.S.C. § 247(a)(l ). lV Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.10 Page 6 of 23 AFFIDAVIT IN SUPPORT OF APPLICATION FOR SEARCH WARRANT I, Maria Solomon, being duly sworn, state: I. INTRODUCTION 1. This affidavit is submitted in support of an application for a search warrant pursuant to 18 U.S.C. 2703(a), 2703(b)( l)(A), and 2703(c)( l )(A), for information associated with the following Facebook accounts: Facebook ID Account Number 100027636555708, with Facebook User Name "John Earnest'", and Facebook ID Account Number 100005829157939, with Facebook Username: "John Tocatina," (hereinafter the "SUBJECT ACCOUNTS"), used by John Earnest, and stored at the premises owned, maintained, controlled, or operated by Facebook, 1601 Willow Road, Menlo Park, California 94025, more fully described in Attachment A. 2. As more fully described herein, there is probable cause to believe that within the SUBJECT ACCOUNTS, more fully described in Attachment A, will be found evidence of violations of federal law, namely, intentional obstruction, by force or threat of force of persons in the free exercise of religious belief, resulting in death, in violation of 18 U.S.C. § 247(a)(2), willfully causing bodily injury to persons through the use of a firearm because of the actual or perceived religion of said persons, resulting in death, in violation of 18 U.S.C. § 249(a)(l ), and damage to religious property, in violation of 18 U.S.C. § 247(a)(l ), as more fully described in Attachment B. II. EXPERIENCE AND TRAINING 3. I am Special Agent with the Federal Bureau of Investigation ("FBI") and have been so employed as such for eight years. I am currently assigned to the San Diego FBI Joint Terrorism Task Force ("JTTF") and have been assigned to this position since 2015. Prior to being assigned to the JTTF, I investigated National 1 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.11 Page 7 of 23 Security matters including espionage and proliferation. I have received extensive training in evidence collection to include post blast investigations and served on the FBl's Evidence Response Team for six years. As part of my duties as a Special Agent, I am have been responsible for investigation violations of federal law, including violations of material support to terrorism, espionage, weapons proliferation and weapons of mass destruction. 4. My knowledge of the facts alleged in this affidavit arises from my training and experience, my personal observations, my participation in the federal investigation described herein, my conversations with other law enforcement agents, and my review of documents obtained during this investigation. Because this affidavit is submitted for the limited purpose of securing a search warrant as described herein, it does not include every fact known to me concerning this investigation. III. FACEBOOK 5. Facebook owns and operates a free-access social networking website of the same name that can be accessed at http://www.facebook.com. Facebook allows its users to establish accounts with Facebook, and users can then use their accounts to share written news, photographs, videos, and other information with other Facebook users, and sometimes with the general public. 6. Facebook asks users to provide basic contact and personal identifying information to Facebook, either during the registration process or thereafter. This information may include the user's full name, birth date, gender, contact e-mail addresses, Facebook, passwords, Facebook security questions and answers (for passwords retrieval), physical address (including city, state, and zip code), telephone numbers, screen names, websites, and other personal identifiers. Facebook also assigns a user identification number to each account. 2 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.12 Page 8 of 23 7. Facebook users may join one or more groups or networks to connect and interact with other users who are members of the same group or network. Facebook assigns a group identification number to each group. A Facebook user can also connect directly with individual Facebook users by sending each user a "Friend request." If the recipient of a "Friend request" accepts the requests, then the two users will become "Friends" for the purposes of Facebook and can exchange communications or view information about each other. Each Facebook user's account includes a list of that user's "Friends" and a "News Feed, "which highlights information about the user's "Friends," such as status updates, profile changes, upcoming events, and birthdays. 8. Facebook users can select different levels of privacy for the communications and information associate with their Facebook accounts. By adjusting these privacy settings, a Facebook user can make information available only to himself or herself, to particular Facebook users. A Facebook user can also create "lists" of Facebook friends to facilitate the application of these privacy settings. Facebook accounts also include other account settings that user can adjust to control, for example, the types of notifications they receive from Facebook. 9. Facebook users can create profiles that include photographs, lists of personal interests, and other information. Facebook users can also post "status" updates about their whereabouts and actions, as well as links to videos, photographs, ' articles, and other items available elsewhere on the Internet. A particular user's profile page also includes a "Wall," which is a space where the user and his or her "Friends" can post messages, attachments, and links that will typically be visible to anyone who can view the user's profile. 10. Facebook has a Photos application, where users can upload an unlimited number of albums and photos. Another feature of the Photos application is the ability to "tag" (i.e., label) other Facebook users in a photo or video. For 3 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.13 Page 9 of 23 Facebook's purposes, the photos associated with a user's account will include all photos upload by that user that have not been deleted, as well as all photos uploaded by any user that have that user tagged in them. 11. Facebook users can exchange private messages on Facebook with other users. These messages, which are similar to e-mail message, are sent to the recipient's "Inbox" on Facebook, which also stores copies of messages sent by the recipient, as well as other information. Facebook users can also post comments on the Facebook profiles of other users or on their own profiles; such comments are typically associated with a specific posting or item on the profile. In addition, Facebook has a Chat feature that allows users to send and receive instant messages through Facebook. These chat communications are stored in the chat history for the account. Facebook also has a Video Calling feature, and although Facebook does not record the calls themselves, it does keep records of the date of each call. IV. PROBABLE CAUSE 12. During the course of my current duties, I have learned the following from consulting with other state, local and . federal law enforcement officers, including San Diego Sheriffs Department (SDSD) Detectives, San Diego County District Attorney Investigators, and my fellow FBI agents. 13. On April 27, 2019 at approximately Communication Center received a 911 11 :23 am. San Diego Sheriffs call of shots fired at the Synagogue located on Chabad Way in Poway. The reporting party, Dan Sedereff, stated shots were fired in the synagogue. 14. During a briefing by the SDSD following the incident, it was reported that a white male, later identified as John Earnest, entered the synagogue through the front door and fired several rounds from an ARI 5 rifle. He then proceeded further into the synagogue where he began firing rounds from a handgun. 4 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.14 Page 10 of 23 I5. The SDSD stated that inside the synagogue was off-duty Border Patrol Agent Jonathan Morales who retrieved a revolver weapon from one of the congregation members and chased the suspect out of synagogue firing four shots at him as he got into a silver Honda that was parked across the street from the church. The Honda fled northbound on Rancho Bernardo Road. Morales then returned the gun to the congregation members who placed it in a black prayer bag and left it in the synagogue. I6. It was determined by officers that four people were shot and transported to the hospital. I7. SDSD Deputies responded to the synagogue along with paramedics. The synagogue was secured by deputies pending obtaining a search warrant from state authorities, which was planned to be executed later that day. I8. The same day (April 27, 20I9), at approximately 11:30 a.m., a male who identified himself as John Earnest called into California Highway Patrol emergency line stating that he had fired shots into the synagogue and was willing to surrender to law enforcement. Earnest called from phone number 858.999.I461. Earnest gave his location as Phil's BBQ at 1705I West Bernardo Center Dr. He stated he was in possession of an ARIS Smith & Wesson MPI5 rifle and several rounds of ammunition in his vehicle but that he would not use them against law enforcement. During that call, Earnest made the following comments, among others: "I just shot up a synagogue. I'm defending my country . . . I'm just trying to defend my nation against the Jewish people; they're destroying our people . . . I opened fire at a synagogue; I think I killed some people." I am informed and believed that Smith & Wesson does not manufacture firearms in the State of California. I9. San Diego Police Department ("SDPD") Officers responded to that location and took John Earnest into custody without further incident. Seen on the front passenger seat was an ARI5 rifle but no handgun was visible. Additionally, in 5 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.15 Page 11 of 23 the vehicle was a helmet with a Go-Pro camera on it. SDPD Officers were holding the vehicle secure at the location pending obtaining and executing a state search warrant. 20. While on scene at the vehicle, it was learned that one of the victims, Laurie Kay, died as a result of gunshot wounds. 21. During a public safety interview with SDPD Detective Rudy Castro, John Earnest confirmed his home address as 10134 Freeport Ct., San Diego CA. He further stated that there were no further weapons at the home. At that time, Earnest did not appear to be under the influence of a controlled substance but did appear to have a "flat affect" as though he was detached or unaffected by his actions. 22. SDPD SWAT officers and Detectives responded to the residence on Freeport Ct. The parents of the suspect were contacted and escorted from the home and taken to the Sheriff's Poway substation, pending the execution of a state search warrant on their residence. While at the substation, the parents informed law enforcement that their son frequently uses a computer in their home. 23. Using various search methods, Whitney Buckingham an SDSD system data miner, found a manifesto on Pastebin.com written by a person identifying himself as John Earnest. In the manifesto, which he named "An Open Letter", Earnest made many anti-sematic and anti-muslim statements. One such statement which is a direct quote is, "As an individual, I can only kill so many Jews." He states he is not a terrorist but that he hates anyone who he sees as a threat to his country. Earnest took credit for a fire that had been set at mosque in Escondido a few weeks earlier. His exact statement was "I scorched a mosque in Escondido with gasoline a week after Brenton Tarrant's sacrifice and they never found shit on me." Additionally, he wrote "I spray-painted on the parking lot. I wrote 'For Brenton Tarrant -t./pol/." 6 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.16 Page 12 of 23 24. I observed part of the post-Miranda statement of Earnest. During that interview, he informed an SDSD Detective that he had adopted his ideology of hate for members of the Jewish religion approximately 18 month earlier. Based on my training and experience, I know that there is a process in which someone undergoes adoption of radical ideologies. This process can take several months or several years before a person actually commits to those ideologies. During the interview, Earnest also stated that he was inspired by individuals such as Adolph Hitler and Brenton Tarrant. 25. Based on information received from Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Special Agent Scott Brahin, on March 24, 2019, an unknown individual set fire to a mosque in Escondido, California. 26. Specifically, on March 24, 2019, at approximately 3:19 a.m., a 911 call was placed to report a fire at the Dar-ul-Arqam Mosque and Islamic Center ("mosque"), located at 318 West 6th Avenue in Escondido, California. The Escondido Fire Department and then Escondido Police Department ("EPD") responded. First responders learned approximately seven individuals had been spending the night at the mosque and, at approximately 3: 15 a.m., they had observed flames and rushed outside to extinguish them with a fire extinguisher. First responders noticed ash or charring along approximately half the length of the mosque's west side and spray-painted writing on the asphalt parkinglot near where the fire had occurred that read, "FOR BRENTON TARRAN r/pol/." First responders also noticed the odor of, or similar to, gasoline at the location of the fire. 27. Investigators conducted an online search for "Brenton Tarran" and noted that he was arrested for the mass shootings at two mosques in New Zealand that occurred on March 15, 2019 and is believed to be a white supremacist. Investigators also learned "r/pol/" is a reference to an online political discussion 7 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.17 Page 13 of 23 board that has been characterized as predominately racist, espousmg views embraced by white supremacist groups. 28. Investigators reviewed surveillance footage retrieved from a business across the street from the mosque. The camera recorded an individual ("suspect") park his/her four-door sedan in front of the mosque at approximately 3 :00 a.m. In the video, the suspect exited the vehicle, walked towards the parking lot where the message was later found spray painted, and then returned to the vehicle. Shortly thereafter, the suspect again exited the car carrying a large container and walked toward the area of the mosque where the fire was set. A short time later, at approximately 3: 15 a.m., a large flash of light and smoke are seen in the video and the suspect walked back to the vehicle and drove away westbound on West 6th Avenue. In surveillance videos obtained from businesses along the route, investigators observed that the suspect appeared to arrive at the mosque on March 24, 2019 by driving eastbound on West 9th Avenue, northbound on South Escondido Boulevard, and then westbound on West 6th Avenue, where he parked in front of the mosque. Investigators also observed, as noted above, that the suspect left the area by driving westbound on West 6th Avenue. Based on their review of surveillance videos, investigators believed that the suspect was driving a Honda, silver in color. 29. 2010 to 2015 Civic � Earnest's statements in the manifesto that he set fire to the Escondido mosque on March 24, 2019, is corroborated by the following. At the time of his arrest for the synagogue shooting, Earnest was driving a 2012 Honda Civic, grey in color. Additionally, the spray painted message left by the mosque arsonist was not released to the media. The fact that the manifesto specifically makes reference to that message further corroborates that Earnest committed the mosque arson. 30. On April 27, 2019, Greg Simon of the SDPD located and viewed an open source online post regarding the shooting at the synagogue. 8 The. post Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.18 Page 14 of 23 purportedly contains a livestream link referencing the shooting at https://www.facebook.com/john.eamest.96780 (i.e., Facebook Account Number 100035547390347, with user name "john.eamest.96780." 31. On April 27, 2019, following the synagogue shooting, FBI Special Agent Scott Norris submitted a request to Facebook for emergency disclosure of records for the ']ohn.eamest.96780" Facebook account, pursuant to 18 U.S.C. § 2702. In response to that request, the Facebook provided records which listed the user's phone as 858.999.1461 (the same number Ernest used to call the CHP on April 27, 2019). Facebook verified the number on April 7, 2019. Facebook identified two additional Facebook accounts possibly utilized by the user of the john.eamest.96780 Facebook account, which were accessed via the same browser and the same electronic device. Those accounts are the SUBJECT ACCOUNTS. Tue-H\llpo1a.se �-4Ui-(th-e-same--nunrber 2(H-9j-. �� also.iudicate.d.-that-the-user-ef-13hefle--R1tm:her-ef Em�wt!-te--GalJ-th�R-Af>ril 27, Opinions and Conclusions 32. I know from my training and experience, including consultation with other law enforcement agents, in investigations involving Facebook that electronic service providers maintain business records that include information listed under the Items Subject to Seizure in Attachment B. 33. Based on my training and experience, including consultation with other agents involved in the investigation and prosecution of hate crimes, I know the following: a. It is common for individuals who commit hate crimes to discuss such matters, with co-conspirators via telephone, text messages, emails and social media - both before and after such crimes - for the purpose of planning and providing updates to one another. 9 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.19 Page 15 of 23 b. It is also common that individuals who commit hate crimes to discuss their criminal activities with trusted third parties, including friends or loved ones, before and after the commission of such crimes, via text messages, emails and social media. c. It is also common for such individuals who commit hate crimes to communicate with other like-minded individuals who support their ideologies, beliefs and violent actions, via text messages, emails and social media; d. It is common for individuals who commit hate crimes to visit or research the planned site of the crimes, prior to committing said crimes, for the purposes of planning the successful execution of their criminal activity and their getaway, and evidence of such research or prior connection may be in their social media sites, including private messaging with third parties; e. It is common for individuals who commit hate crimes to post statements or send messages to others regarding their bias and motivation for committing such crimes, which evidence may be found in their social media sites, including private messaging with third parties; f. It is common for individuals who commit hate crimes to conduct research regarding hate crimes committed by themselves and others, and evidence of such research may be found in their social media sites, including private messaging with third parties; g. It is common for individuals who commit hate crimes to recruit others individuals to adopt their ideological beliefs and inspire others to commit violent acts in support of those beliefs, and evidence of such recruitment may be found in their social media sites, including private messaging with third parties. h. It is common for individuals who commit hate crimes to conduct research regarding the tools and means to carry out their hate crimes, including 10 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.20 Page 16 of 23 research involving obtaining, manufacturing and/or usmg firearms, dangerous weapons, and incendiary and explosive devices. 34. Based on my training and experience, and my consultation with my fellow agents, I also believe that the evidence I seek remains in and will be found in the SUBJECT ACCOUNTS despite the passage of time. Routinely, during previous cases involving the search of electronically stored data, relevant investigative information is found dating back several months or even years. V. SEARCH PROTOCOL A. 35. Genuine Risk of Destruction of Evidence Based upon my experience and training, and the experience and training of other agents with whom I have consulted with, electronically stored data can be permanently deleted or niodified by users possessing basic computer skills. In this case, only if the subject receives advance warning of the execution of this warrant, will there be a genuine risk of destruction of evidence. B. Prior Attempt to Obtain Evidence 36. State authorities have obtained a state search warrant for the Facebook Account, User Name "john.eamest.96780." As indicated above, federal agents also obtained emergency disclosure of limited records for the "john.eamest.96780" Facebook Account which information disclosed the additional ACCOUNTS. the SUBJECT The United States is unware of any search warrant applications for SUBJECT ACCOUNTS. C. Procedures for Electronically Stored Information 37. Federal agents and investigative support personnel are trained and experienced in identifying communications relevant to the crimes under investigation. The personnel of Facebook are not. It would be inappropriate and impractical for federal agents to search the vast computer network of Facebook for 11 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.21 Page 17 of 23 the relevant accounts and then to analyze the contents of those accounts on the premises of Facebook. The impact on Facebook's business would be severe. 38. Therefore, I request authority to seize all content, including electronic mail and attachments, stored instant messages, stored voice messages, photographs and any other content from the SUBJECT ACCOUNTS, as described in Attachment B. In order to accomplish the objective of the search warrant with a minimum of interference with the business activities of Facebook, to protect the rights of the subject of the investigation and to effectively pursue this investigation, authority is sought to allow Facebook to make a digital copy of the entire contents of the accounts subject to seizure. That copy will be provided to me or to any authorized federal agent. The copy will be forensically imaged and the image will then be analyzed to identify communications and other data subject to seizure pursuant to Attachment B. Relevant data will be copied to separate media. The original media will be sealed and maintained to establish authenticity, if necessary. 39. Analyzing the data to be provided by Facebook may require special technical skills, equipment and software. It also can be very time-consuming. Searching by keywords, for example, often yields many thousands of "hits," each of which must be reviewed in its context by the examiner to determine whether the data in within the scope of the warrant. Merely finding a relevant "hit" does not end the review process. Certain file formats do not lend themselves to keyword searches and keyword search text. Many common electronic mail, database and spreadsheet applications, which files may have been attached to electronic mail, do not store data as searchable text. The data is saved in a proprietary non-text format. The volume of storage allotted by service providers increases, the time it takes to properly analyze recovered data increases dramatically. 40. Based on the foregoing, searching the recovered data for the information subject to seizure pursuant to this warrant may require a range of data 12 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.22 Page 18 of 23 analysis techniques and may take weeks or even months. Keywords need to be modified continuously based upon the results obtained. The personnel conducting the examination will complete the analysis within (90) days of receipt of the data from the service provider, absent further application to this court. 41. Based upon my experience and training, and the experience and training of other agents with whom I have communicated, it is necessary to review and seize all electronic mails that identify any users of the SUBJECT ACCOUNTS and any electronic mails sent or received in temporal proximity to incriminating electronic mails that provide context to the incrimination mails. 42. All forensic analysis of the imaged data will employ search protocols directed exclusively to the identification and extraction of data within the scope of this warrant. 43. FBI Special Agents have been in contact with Facebook, who is expecting FBI to serve them with the warrant as soon as it is signed. For that reason, we are requesting permission to serve the warrant on Facebook at any time, day or night. VI. REQUEST FOR SEALING AND PRECLUSION OF NOTICE 44. Although John Earnest has been arrested by state authorities, he is unaware of the scope and nature of law enforcement's investigation into his activities. Additionally, law enforcement is still investigating whether he acted alone, or conspired with others or was inspired by others. As such, there is reason to believe that that disclosure of the affidavit and warrant will result in destruction of or tampering with evidence or otherwise seriously jeopardize the investigation. Accordingly, it is requested that this warrant and its related materials be sealed until further order of the Court. In addition, pursuant to Title 18, United States Code, Section 2705(b ), it is requested that this Court order Facebook to whom this warrant is directed not to notify anyone of the existence of this warrant, other than its 13 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.23 Page 19 of 23 personnel essential to compliance with the execution of this warrant until October 25, 2019, absent order from the Court. VII. CONCLUSION 45. Based on the foregoing, your affiant submits that there is probable cause to believe that violations of federal criminal law, namely, violations of federal law, namely, intentional obstruction, by force or threat of force of persons in the free exercise of religious belief, resulting in death, in violation of 18 U.S.C. § 247(a)(2), willfully causing bodily injury to persons through the use of a firearm because of the actual or perceived religion of said persons, resulting in death, in violation of 18 U.S.C. § 249(a)(l), and damage to religious property, in violation of 18 U.S.C. § 247(a)(l), have occurred, and that evidence of said violations, as described in Attachment B will be found within the SUBJECT ACCOUNTS. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Yl11t(11,£ g��w--. Maria Solomori FBI, Special Agent Sworn to before me this ___1d 1f ay of April _� 2019 14 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.24 Page 20 of 23 ATTACHMENT A This warrant applies to information associated with following Facebook accounts: Facebook ID Account Number 100027636555708, with Facebook User Name "John Earnest"; and Facebook ID Account Number 100005829157939, with Facebook Usemame: "John Tocatina," that are stored at premises owned, maintained, controlled, or operated by Facebook, 1601 Willow Road, Menlo Park, California 94025 1 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.25 Page 21 of 23 ATTACHMENT B I. Service of Warrant The officer executing the warrant shall permit Facebook, as custodian of the computer files described in Section II below, to locate the files and copy them onto removable electronic storage media and deliver the same to the officer. II. Items Subject to Seizure All registration information; Phone and associated devices; Trusted devices; Deleted friends; Last location; IP history; Stored video and audio direct message communications; Any and all accounts associated by cookie; User Names and profile names; E-mail addresses and passwords; Any and all live stream video associated �ith account; Profile information; Friends information; Private messages in the user's inbox, sent messages, trash/deleted messages, notifications and updates involving any and all user; Chat information in the user's inbox, sent messages, trash/deleted messages, notifications and updates involving any and all user; IP logs (which includes the date stamps of the IP logs at login), initial login IP address and account activity and other information including name, address, phone number and other screen names that may tend to identify the user; and any other files associated with the following accounts: Facebook ID Account Number 100027636555708, with Facebook User Name "John Earnest'" and ' Facebook ID Account Number 100005829157939, with Facebook Usemame: "John Tocatina," (hereinafter, the "SUBJECT ACCOUNTS"). The search of the data supplied by Facebook, Inc., pursuant to this warrant will be conducted as provided in the . "Procedures for Electronically Stored Information" of the affidavit submitted in support of this search warrant and will be limited to: a. Communications, data, or attachments relating to the research, purchase, or acquisition of firearms, and the research or manufacture of incendiary or explosive devices; 11 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.26 Page 22 of 23 Communications, data, or attachments tending to identify others b. involved in the criminal activity described below; c. Communications, data, or attachments third parties with whom John Ernest discussed the criminal activities described below; d. Communications, data, or attachments relating to John Earnests' motivation and bias for committing the criminal activities described below; e. Communications, data, or attachments relating to the research of, visits to, or other connections with the Synagogue located on Chabad Way in Poway, California, and/or the Dar-ul-Arqam Mosque and Islamic Center (the "mosque"), located at 318 West 6th Avenue in Escondido, California; Communications, data, or attachments relating to the research or viewing of news articles and reports about the arson that occurred at the mosque in Escondido, California on March 24, 2019, or criminal acts committed by other individuals involving criminal activity described below; f. g. Communications, data, or attachments relating to recruiting and inspiring individuals to engage in the criminal activity described below; h. Communications, data, or attachments relating to the whereabouts of John Earnest and any criminal associates or co-conspirators at the of the April 27, 2019, shooting at the synagogue on Chabad Way in Poway, and the March 24, 2019, arson of the mosque in Escondido, California; Communications, data, or attachments that tend to provide context to the information described above, such as direct messages sent or received in temporal proximity to any relevant communications, or communications, data, or attachments tending to identify the user of or person with control over the L SUBJECT ACCOUNTS. 111 Case 3:19-mj-01756-JLB Document 1 Filed 04/29/19 PageID.27 Page 23 of 23 during the time period from January 1, 2017, through April 27, 2019, which tend to prove violations of federal law, namely, intentional obstruction, by force or threat of force, of persons in the free exercise of religious belief, resulting in death, in violation of 18 U.S.C. § 247(a)(2), willfully causing bodily injury to persons through the use of a firearm because of the actual or perceived religion of said persons, resulting in death, in violation of 18 U.S.C. § 249(a)(l), and damage to religious property, in violation of 18 U.S.C. § 247(a)(l). lV EXHIBIT 6/27/2019 RE: Update on John Earnest search warrants? - ebaldridge@jassyvick.com From: Krueger, Paul (NBCUniversal, KNSD) Sent: Thursday, May 2, 2019 5:53 PM To: Dalton, Karen ; Walker, Steve (DA) Cc: Jones, Thomas (NBCUniversal) ; Dawson, Greg (NBCUniversal) Sent: Friday, May 03, 2019 2:34 PM To: Krueger, Paul (NBCUniversal, KNSD) ; Walker, Steve (DA) ; Dawson, Greg (NBCUniversal) Sent: Thursday, May 2, 2019 5:53 PM To: Dalton, Karen ; Walker, Steve (DA) Cc: Jones, Thomas (NBCUniversal) ; Dawson, Greg (NBCUniversal) Sent: Friday, May 03, 2019 2:34 PM To: Krueger, Paul (NBCUniversal, KNSD) ; Walker, Steve (DA) ; Dawson, Greg (NBCUniversal) Sent: Wednesday, May 8, 2019 9:55 AM To: Dalton, Karen Cc: Sierra, Tanya (DA) ; Jones, Thomas (NBCUniversal) ; Dawso Subject: Update on John Earnest search warrants? Karen, Can you get me an update, if info is available yet from Judge Deddeh, about the number of warrants and any the p Thx Paul Sent from my iPhone On May 3, 2019, at 3:04 PM, Walker, Steve wrote: Hi Paul, At this point, I can only let you know that the warrants are all sealed. Best, Steve Walker Communications Director, Special Assistant San Diego County District Attorney’s Office O: (619) 531-3890  M: (619) 843-7977 Follow the DA on: Sign up for News Alerts from the DA! From: Krueger, Paul (NBCUniversal, KNSD) [mailto:Paul.Krueger@nbcuni.com] Sent: Friday, May 03, 2019 2:42 PM To: Dalton Karen SDCOURT; Walker Steve; Sierra Tanya https://mail.google.com/mail/u/0/?ui=2&view=btop&ver=12a2bdx1zpbnw&msg=%23msg-f%3A1636908120968095591&attid=0.9 1/1 6/27/2019 p 619-844-2353 RE: Update on John Earnest search warrants? - ebaldridge@jassyvick.com , y g From: Krueger, Paul (NBCUniversal, KNSD) Sent: Thursday, May 9, 2019 12:10 PM To: Dalton, Karen Cc: Sierra, Tanya (DA) ; Jones, Thomas (NBCUniversal) ; Dawso Subject: RE: Update on John Earnest search warrants? Thanks for this info, Karen. When can we get the number for the ten warrants signed by Judge Lewis on 4/27/ Can you con irm that all of the warrants have been returned with receipts and inve Thx, Paul From: Dalton, Karen Sent: Thursday, May 09, 2019 12:01 PM To: Krueger, Paul (NBCUniversal, KNSD) Cc: Sierra, Tanya (DA) ; Jones, Thomas (NBCUniversal) ; Dawso Subject: [EXTERNAL] RE: Update on John Earnest search warrants? Dear Paul, Thank you for your pa ence as we queried our judges as to who may have signed a search warrant in this case. Here is what we have compiled: Judge Deddeh has brought all warrants and the suppor ng affidavit to the Central Courthouse. On April 27th - ten (10) warrants were signed by Judge Lantz Lewis (EAST). They have temporary #s not ready for On April 28th - six (6) search warrants were granted by Judge Jay Bloom (CENTRAL). Their numbers are: 60576, 6 All warrants and their suppor ng affidavit are sealed. Judge Deddeh will not hold an informal discussion on the unsealing. Should the media wish to request an unsealing, it should file accordingly and Judge Deddeh will inform all par es. Karen Dalton Public Affairs Office Superior Court of California, County of San Diego 619-844-2353 From: Krueger, Paul (NBCUniversal, KNSD) Sent: Wednesday, May 8, 2019 9:55 AM To: Dalton, Karen Cc: Sierra, Tanya (DA) ; Jones, Thomas (NBCUniversal) ; Dawso Subject: Update on John Earnest search warrants? https://mail.google.com/mail/u/0/?ui=2&view=btop&ver=12a2bdx1zpbnw&msg=%23msg-f%3A1636908120968095591&attid=0.9 1/1 6/27/2019 RE: Update on John Earnest search warrants? - ebaldridge@jassyvick.com From: Dalton, Karen Sent: Friday, May 10, 2019 2:36 PM To: Krueger, Paul (NBCUniversal, KNSD) Cc: Sierra, Tanya (DA) ; Jones, Thomas (NBCUniversal) ; Dawso Subject: [EXTERNAL] RE: Update on John Earnest search warrants? Good A ernoon Paul, The Judge Lewis warrants have the following numbers: E2019-413 E2019-414 E2019-418 E2019-434 E2019-435 E2019-436 E2019-437 E2019-438 E2019-439 E2019-442 Returns have been made on all the warrants except for E2019-442 All are sealed including the receipt and inventories. Karen Dalton Public Affairs Office Superior Court of California, County of San Diego 619-844-2353 From: Krueger, Paul (NBCUniversal, KNSD) Sent: Thursday, May 9, 2019 12:10 PM To: Dalton, Karen Cc: Sierra, Tanya (DA) ; Jones, Thomas (NBCUniversal) ; Dawso Subject: RE: Update on John Earnest search warrants? Thanks for this info, Karen. When can we get the number for the ten warrants signed by Judge Lewis on 4/27/ Can you con irm that all of the warrants have been returned with receipts and inve Thx, Paul From: Dalton, Karen S Th d M 09 2019 12 01 PM https://mail.google.com/mail/u/0/?ui=2&view=btop&ver=12a2bdx1zpbnw&msg=%23msg-f%3A1636908120968095591&attid=0.9 1/1 6/27/2019 RE: Update on John Earnest search warrants? - ebaldridge@jassyvick.com Subject: RE: Update on John Earnest search warrants? Krueger, Paul (NBCUniversal, KNSD) to Dalton, Karen, Sierra, Tanya (DA), Jones, Thomas (NBCUniversal), Dawson, Greg (NBCUniversal), Walker, Steve You are viewing an attached message. Jassy Vick LLP Mail can't verify the authenticity of atta Thx much Karen. We’ll discuss our options here, and get back to you next week. Paul From: Dalton, Karen Sent: Friday, May 10, 2019 2:36 PM To: Krueger, Paul (NBCUniversal, KNSD) Cc: Sierra, Tanya (DA) ; Jones, Thomas (NBCUniversal) ; Dawso Subject: [EXTERNAL] RE: Update on John Earnest search warrants? Good A ernoon Paul, The Judge Lewis warrants have the following numbers: E2019-413 E2019-414 E2019-418 E2019-434 E2019-435 E2019-436 E2019-437 E2019-438 E2019-439 E2019-442 Returns have been made on all the warrants except for E2019-442 All are sealed including the receipt and inventories. Karen Dalton Public Affairs Office Superior Court of California, County of San Diego 619-844-2353 https://mail.google.com/mail/u/0/?ui=2&view=btop&ver=12a2bdx1zpbnw&msg=%23msg-f%3A1636908120968095591&attid=0.9 1/1 PROOF OF SERVICE 1 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of 4 eighteen years and not a party to this action. My business address is 800 Wilshire Blvd., Suite 800, Los Angeles, CA 90017. 5 On June 27, 2019, I served true copies of the following document(s) described as: 6 NOTICE OF MOTION AND MOTION BY NON-PARTY MEDIA ENTITIES TO UNSEAL SEARCH WARRANT RECORDS; MEMORANDUM OF POINTS AND 8 AUTHORITIES IN SUPPORT; DECLARATION OF ELIZABETH BALDRIDGE, EXS. AE 7 9 10 on the interested party(ies) in this action as follows: 11 District Attorney Summer Stephan Hall of Justice 12 330 W. Broadway San Diego, CA 92101 13 John Denis O’Connell Jr. 14 San Diego County Public Defender 15 450 B. St., Suite 900 16 17 18 San Diego, CA 92101  BY FEDERAL EXPRESS OVERNIGHT DELIVERY: I enclosed said document(s) in an envelope(s) or package(s) provided by FedEx and addressed to the person(s) at the address(es) listed above. I placed the envelope(s) or package(s) for collection and overnight delivery at an office or a regularly utilized drop box of FedEx. 19 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 20 21 Executed on June 27, 2019, at Los Angeles, California. 22 23 24 Marlene Rios 25 26 27 28 PROOF OF SERVICE