10-03-2016 ECF 706 USA V Micah McGuire - First Motion To Suppress

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 1 of 15
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CHRIS ARABIA, Esq.

Nevada Bar No. 9749
Law Offices of Chris Arabia, PC
601 S. 10th St., Suite 107
Las Vegas, NV 89101
Phone: 702.701.4391
Fax: 877.858.7893
Attorney for Defendant
UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,

Plaintiff,
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vs.
MICAH L. McGUIRE,
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Defendant.
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Case No. 2:16-CR-00046-GMN-PAL

DEFENDANT MICAH McGUIRES
MOTION TO SUPPRESS ALL
EVIDENCE RECOVERED FROM
HIS FACEBOOK ACCOUNT AND
FRUITS DERIVED THEREFROM
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Certification of Timeliness: This motion is timely filed pursuant to the
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April 26, 2016 order.
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Pursuant to Fed. R. Crim. P. 12(b)(3)(C), defendant Micah McGuire,

through his attorney Chris Arabia, of the Law Offices of Chris Arabia, PC,
respectfully moves this Court to suppress all evidence obtained from the
governments illegal search of McGuires Facebook account. The search warrants
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violated Fed. R. Crim. P. 41 and 28 USC 636(a) because they were obtained in
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the District of Nevada from a Nevada magistrate in support of a search for

information located in California. Suppression is required of all evidence obtained
or derived from Facebook pursuant to search warrants that were void ab initio.
RELIEF REQUESTED
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That this Court suppress any and all evidence obtained from the Facebook
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account of Micah McGuire, including any and all evidentiary fruits derived
therefrom.
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STATEMENT OF FACTS
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The government has made clear its intention to offer Facebook and social
media evidence against McGuire at trial. In its memorandum in support of pretrial
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detention, the government makes repeated references to alleged Facebook content

pertaining to McGuire. (ECF 130, 19-23).
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While review is still ongoing, the discovery contains a large quantity of

purported Facebook material pertaining to McGuire, including approximately
extensive raw data and analyses by law enforcement of specific items and
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materials.
The discovery also contains the search warrants generated, issued, and
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executed to obtain the information.
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A. The search warrant was issued in Nevada and executed in California.
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On June 5, 2015, the FBI sought a search warrant from the U.S. District
Court in Nevada.1
The application described the property to be searched as
information associated with McGuires Facebook user identification number,
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(Exhibit A, GB 1315), and that such information is stored at premises owned,

maintained, controlled, or operated by Facebook, Inc., a company headquartered in
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Menlo Park, California. (Exhibit A, GB 1317).

U.S. Magistrate Judge for the District of Nevada the Honorable George
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Foley, Jr. signed the warrant on June 5, 2015. (Exhibit A, GB 1315). The warrant
described the subject of the search as person or property located in the District of
Nevada. (Exhibit A, GB 1315).
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The warrant was executed on June 5, 2015 and covered information
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associated with McGuires Facebook account from March 28, 2014 to the present
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(i.e. June 5, 2015). (Exhibit A, GB 1316). As part of discovery, the defense

received at least 13,000+ pages of information purportedly from McGuires
Facebook account.
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The warrant, application for warrant, and supporting affidavit are included
as Exhibit A, which has been filed under seal.
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ARGUMENT
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A. THE FACEBOOK ACCOUNT INFORMATION OBTAINED THROUGH

THE SEARCH WARRANT MUST BE SUPPRESSED AS THE FRUITS
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OF AN ILLEGAL SEARCH; THE MAGISTRATE JUDGE

IMPERMISSIBILY EXCEEDED HIS JURISDICTION.
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The Governments search of the McGuires Facebook account, based on a

warrant signed by a District of Nevada Magistrate, violated the jurisdictional
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limitations on magistrate judges under Fed. R. Crim. P. 41 and 28 U.S.C. 636(a).

Those rules permit a magistrate judge to issue search warrants only for locations
within the judicial district itself; the minor exceptions to these restrictions are not
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relevant to the instant matter.

Rule 41 and Section 636(a) are important bulwarks against the hazards of
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unrestricted national searches.

This Court must suppress the Facebook evidence and any fruits derived
therefrom because the Nevada magistrate lacked the jurisdiction to provide a
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warrant for a search of property in California. The warrant itself confirmed this
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with its language regarding authorization to search for property in the District of
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Nevada. (Exhibit A, GB 1315).
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Thus, the warrant was void ab initio. See, e.g., United States v. Krueger, 809
F.3d 1109, 1126 (10th Cir. 2015) (Gorsuch, J., concurring) (The government asks
us to resolve but one question, bold as it is: whether a warrant issued in defiance of
positive law's jurisdictional limitations on a magistrate judge's powers remains a
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warrant for Fourth Amendment purposes. I would not hesitate to answer that
question put to us and reply that a warrant like that is no warrant at all.).
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1. The warrant contravenes Fed. Rule Crim. P. 41.

The warrant ran afoul of the jurisdictional limits of Fed. R. Crim. P. 41 by
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enabling agents of the government to conduct a borderless search in Menlo Park,

California. Rule 41 simply does not allow a Nevada magistrate to authorize the
search of property in California; rather, it provides authority to issue a warrant in
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five specific circumstances, as elucidated in part (b) of the Rule:

(b) Authority to Issue a Warrant. At the request of a federal law
enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the districtor if none is
reasonably available, a judge of a state court of record in the district
has authority to issue a warrant to search for and seize a person or
property located within the district;
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(2) a magistrate judge with authority in the district has authority to

issue a warrant for a person or property outside the district if the
person or property is located within the district when the warrant is
issued but might move or be moved outside the district before the
warrant is executed;
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(3) a magistrate judgein an investigation of domestic terrorism or

international terrorismwith authority in any district in which
activities related to the terrorism may have occurred has authority to
issue a warrant for a person or property within or outside that district;
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(4) a magistrate judge with authority in the district has authority to

issue a warrant to install within the district a tracking device; the
warrant may authorize use of the device to track the movement of a
person or property located within the district, outside the district, or
both; and
(5) a magistrate judge having authority in any district where activities
related to the crime may have occurred, or in the District of Columbia,
may issue a warrant for property that is located outside the jurisdiction
of any state or district, but within any of the following:
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(A) a United States territory, possession, or commonwealth;

(B) the premisesno matter who owns themof a United
States diplomatic or consular mission in a foreign state, including any
appurtenant building, part of a building, or land used for the missions
purposes; or
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(C) a residence and any appurtenant land owned or leased by

the United States and used by United States personnel assigned to a
United States diplomatic or consular mission in a foreign state.
None of the above-presented codicils authorizes the warrant in the instant
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case and therefore the warrant is illegal. See In re Warrant to Search a Target
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Computer at Premises Unknown, 958 F. Supp. 2d 753, 757 (S.D. Tex. 2013)
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(hereinafter In Re Warrant). In In Re Warrant, the government sought a warrant

from the magistrate judge to search a Target Computer, the whereabouts of
which were unknown. The government contended that the search warrant was
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valid and accorded with the jurisdictional/territorial constraints of Rule 41 because
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the initial examination of any information recovered would occur in the

jurisdiction issuing the warrant. Id. at 756.
The court did not fancy the governments contention.
Id. (Under the
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Government's theory, because its agents need not leave the district to obtain and
view the information gathered from the Target Computer, the information
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effectively becomes property located within the district. This rationale does not
withstand scrutiny.).
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Approximately five months after the decision in In Re Warrant, the U.S.

Department of Justice sought changes to Rule 41 that would theoretically facilitate
law enforcement efforts to obtain warrants to hack computers in unknown
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locations. See United States v. Levin, F. Supp. 3d , 2016 WL 2596010, 2016

U.S. Dist. LEXIS 52907, at *15 n. 13 (D. Mass. May 5, 2016) (noting comments
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from the Department of Justice to Hon. Reena Raggi on Sept. 18, 2013, requesting
a rule change which would add a new Rule 41 subsection); 2 See also Letter from
Assistant Attorney General Mythili Raman to Hon. Reena Raggi. (Sept. 18, 2013)
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A variety of professors, media outlets, and non-profit organizations have

levied harsh criticisms at the governments proposed amendments because they
will provide law enforcement agencies with mechanisms to bypass the Fourth
Amendment and lead to a circumvention of other legal oversight regimes. Zach
Lerner, A Warrant to Hack: An Analysis of the Proposed Amendments to Rule 41
of the Federal Rules of Criminal Procedure, 18 Yale J. L. & Tech. 26, 29 (2016).
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(containing the actual comments from the United States Department of Justice
requesting the amendment to Rule 41 in order to update the provisions relating to
the territorial limits for searches of electronic storage media) (available online at
http://www.uscourts.gov/rulespolicies/archives/suggestions/hon-mythili-raman-13-
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cr-b).
The United States Supreme Court eventually opted to amend Rule 41,
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effective December 1, 2016. Unless Congress intervenes, the amendment will give
magistrates the authority to issue a warrant to use remote access to search
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electronic storage media and to seize or copy electronically stored information

located within or outside that district. See Letters from Chief Justice John Roberts
to Paul D. Ryan and Joseph R. Biden, Jr. (April 28, 2016) (with copies of the Rule
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41 amendment approved by the Supreme Court) (available online at:

http://www.supremecourt.gov/orders/courtorders/frcr16_mj80.pdf).
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The Rule 41 amendment augments the authority of magistrate judges in

limited circumstances inapplicable to the instant matteri.e. cases in which either
(1) the district where the media or information is located has been concealed
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through technological means or (2) in limited computer fraud hacking cases

covering five or more districts. Id.
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The amendment will buttress the jurisdictional basis of future magistrateissued warrants such as those in the Levin case (location of electronic data
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concealed). The amendment will have no effect or impact on other magistrate-
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issued warrants, e.g. warrants such as the warrant at issue in the instant matter (the
government knows the location of data and no one has attempted to conceal).
For the reasons discussed immediately above, the imminent Rule 41
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amendment would have no effect on McGuires situation even were the

amendment somehow effective at the time of the application for and issuance of
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the McGuire Facebook warrant.

Lest the forest of impropriety in the instant matter be lost among the trees of
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the Rule 41 amendment, it is paramount to remember a key and undeniable fact:

when obtaining the warrant for McGuires Facebook information, the government
was cognizant of the jurisdictional/territorial limitations of magistrate judges but
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declined to pursue a warrant from either a California magistrate or a Nevada

Article III judge. The issued warrant thus violated of Rule 41.
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2. The Issuance of the Warrants Violated 28 U.S.C. 636(a).

Beyond the fatal Rule 41 violation, the warrant also runs afoul of the Federal
Magistrate Act (28 U.S.C. 636), which generally restricts the reach of a
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magistrate judges orders to the territory in which the magistrate sits. See Krueger,
809 F.3d at 1118 (Gorsuch, J., concurring) (emphasizing that a violation of Rule
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41(b)s territorial limitations also implicates the statutory limitation of Section

636). Section 636(a) specifies the geographical frontiers of a magistrate judges
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power: (1) within the district in which sessions are held by the [district] court that
appointed the magistrate judge, (2) at other places where that [district] court may
function, and (3) elsewhere as authorized by law. None of those provisions can
salvage the warrant at issue here because the warrant sought property held outside
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of Nevada.
The government could have sought a warrant from a U.S. District Court
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Judge, which would have neutralized the Section 636 statutory argument against
the warrant in this case. The government could also have pursued authorization
from a magistrate judge in the Northern District of California. The governments
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decision to seek authority from courts without jurisdiction rendered the warrant
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void ab initio.3
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3. This Court should suppress evidence obtained from Facebook
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in violation of Rule 41 and Section 636(a).
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Even with its awareness of the constraints on magistrate judges

geographical authority, the government obtained the warrants at issue from a
magistrate judge in Nevadaand not in California. Suppression of all evidence
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recovered and the fruits derived therefrom is required because the search warrants
The Stored Communications Act provides no safe harbor for the warrants
the government obtained; that statute is also constrained by the territorial limitation
of Rule 41 and the regular powers of a court of competent jurisdiction. See 18
U.S.C. 2703(a) ([P]ursuant to a warrant issued using the procedures described in
the Federal Rules of Criminal Procedure by a court of competent jurisdiction.).
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issued to Facebook contravened Fed. Rule Crim. P. 41 and 28 U.S.C. Section
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636(a).
The exclusionary rule is properly applied to cases involving deliberate,
reckless, or grossly negligent conduct, or in some circumstances recurring or
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systemic negligence. Herring v. United States, 129 S. Ct 695, 702 (2009). When
the government violates Rule 41, and the defendant is prejudiced by that violation,
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the remedy is to suppress all evidence resulting from the illegality. See United
States v. Burgos-Montes, 786 F.3d 92, 109 (1st Cir.), cert. denied, 136 S. Ct. 599
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(2015); United States v. Schoenheit, 856 F.2d 74, 7677 (8th Cir. 1988); United
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States v. Burke, 517 F.2d 377, 38687 (2d Cir. 1975) (reasoning that rule
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violations should only lead to suppression where (1) there was prejudice in the
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sense that the search might not have occurred or would not have been so abrasive if
the Rule had been followed or (2) there is evidence of an intentional and deliberate
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disregard for the rule by the government); see also United States v. Radlick, 581
F.2d 225, 228 (9th Cir. 1978) (same).
McGuire has suffered prejudice because of the governments intentional and
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deliberate disregard for the jurisdictional limitations of Rule 41 and Section 636(a).
The exclusionary rule reaches not only primary evidence obtained as a direct result
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of an illegal search or seizure, see Weeks v. United States, 232 U.S. 383 (1914),
but also evidence later discovered and found to be derivative of an illegality, or
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fruit of the poisonous tree. Nardone v. United States, 308 U.S. 338, 341 (1939);
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see also United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011). As the Nevada
warrant that permitted a search of information on Facebook servers in California
was void ab initio, all fruits gained therefrom are now poisonous and must be
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suppressed.
4. Because the warrant was void ab initio,
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the good faith exception does not apply.

A good faith exception to an otherwise unlawful search and seizure may
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apply if the executing officers act in objectively reasonable reliance on the

warrants validity. See United States v. Leon, 468 U.S. 897 (1984). The Supreme
Court observed that [r]easonable minds frequently may differ on the question
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whether a particular affidavit establishes probable cause, and we have thus

concluded that the preference for warrants is most appropriately effectuated by
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according great deference to a magistrate judges determination.
Id. at 914
(internal quotation marks and citations omitted). However, as the Levin court
noted, Leon does not confer so high a level of deference when magistrate judges
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determine their own jurisdiction. Levin, 2016 WL 2596010, at *10. In other

words, the Leon good faith exception has been applied to warrants invalidated for
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lack of probable cause but not to warrants void for lack of jurisdiction. Id. at *10,
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n.17 (collecting cases where courts have held that when a warrant is issued without
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jurisdiction, there is no need to conduct a good faith analysis).

To apply the good faith exception to the facts of McGuires case would
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collapse the distinction between judicial errorwhere mistakes of sufficiency or
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misunderstanding statutory requirements might warrant a good faith exception if
the public interest outweighs the violationand judicial authoritywhere a
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judge acts outside of his or her authority altogether. Id. at *12.
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5. Conclusion.
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At the time it obtained the Nevada warrant to search and seize evidence
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known to be in California, the government was aware that Rule 41 and Section
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636(a) contained jurisdictional/territorial constraints under which the magistrates
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authority only covered Nevada.

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Because the magistrate judge lacked jurisdiction to issue warrants for
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property in California, the underlying Facebook warrant was void ab initio. All
Facebook evidence, and/or evidence derived from the Facebook account and any
fruits derived therefrom, must be suppressed.
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RESPECTFULLY SUBMITTED this 3rd day of October, 2016.

/s/
CHRIS ARABIA, Esq.
Nevada Bar No. 9749
Law Offices of Chris Arabia, PC
601 S. 10th St., Suite 107
Las Vegas, NV 89101
Phone: 702.701.4391
Fax: 877.858.7893
Attorney for Defendant Micah McGuire
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CERTIFICATE OF SERVICE
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I hereby certify that on this 3rd day of October 2016, a true and correct copy
of DEFENDANT MICAH MCGUIRES MOTION TO SUPPRESS ALL
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EVIDENCE RECOVERED FROM FACEBOOK ACCOUNT AND FRUITS

DERVIED THEREFROM was served via the United States District Court
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CM/ECF system on all parties or persons requiring notice.
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By:
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Chris Arabia
Attorney for Micah McGuire
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10-03-2016 ECF 706 USA V Micah McGuire - First Motion To Suppress

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10-03-2016 ECF 706 USA V Micah McGuire - First Motion To Suppress

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Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 1 of 15

CHRIS ARABIA, Esq.

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Case No. 2:16-CR-00046-GMN-PAL

Certification of Timeliness: This motion is timely filed pursuant to the

April 26, 2016 order.

Pursuant to Fed. R. Crim. P. 12(b)(3)(C), defendant Micah McGuire,

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 2 of 15

the District of Nevada from a Nevada magistrate in support of a search for

detention, the government makes repeated references to alleged Facebook content

While review is still ongoing, the discovery contains a large quantity of

executed to obtain the information.

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 3 of 15

A. The search warrant was issued in Nevada and executed in California.

The application described the property to be searched as

information associated with McGuires Facebook user identification number,

(Exhibit A, GB 1315), and that such information is stored at premises owned,

Menlo Park, California. (Exhibit A, GB 1317).

The warrant was executed on June 5, 2015 and covered information

(i.e. June 5, 2015). (Exhibit A, GB 1316). As part of discovery, the defense

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 4 of 15

A. THE FACEBOOK ACCOUNT INFORMATION OBTAINED THROUGH

OF AN ILLEGAL SEARCH; THE MAGISTRATE JUDGE

The Governments search of the McGuires Facebook account, based on a

limitations on magistrate judges under Fed. R. Crim. P. 41 and 28 U.S.C. 636(a).

relevant to the instant matter.

unrestricted national searches.

Nevada. (Exhibit A, GB 1315).

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 5 of 15

1. The warrant contravenes Fed. Rule Crim. P. 41.

enabling agents of the government to conduct a borderless search in Menlo Park,

five specific circumstances, as elucidated in part (b) of the Rule:

(2) a magistrate judge with authority in the district has authority to

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 6 of 15

(3) a magistrate judgein an investigation of domestic terrorism or

(4) a magistrate judge with authority in the district has authority to

(A) a United States territory, possession, or commonwealth;

(C) a residence and any appurtenant land owned or leased by

(hereinafter In Re Warrant). In In Re Warrant, the government sought a warrant

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 7 of 15

valid and accorded with the jurisdictional/territorial constraints of Rule 41 because

the initial examination of any information recovered would occur in the

Id. (Under the

Approximately five months after the decision in In Re Warrant, the U.S.

locations. See United States v. Levin, F. Supp. 3d , 2016 WL 2596010, 2016

A variety of professors, media outlets, and non-profit organizations have

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 8 of 15

electronic storage media and to seize or copy electronically stored information

41 amendment approved by the Supreme Court) (available online at:

The Rule 41 amendment augments the authority of magistrate judges in

through technological means or (2) in limited computer fraud hacking cases

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 9 of 15

concealed). The amendment will have no effect or impact on other magistrate-

amendment would have no effect on McGuires situation even were the

the McGuire Facebook warrant.

the Rule 41 amendment, it is paramount to remember a key and undeniable fact:

declined to pursue a warrant from either a California magistrate or a Nevada

2. The Issuance of the Warrants Violated 28 U.S.C. 636(a).

41(b)s territorial limitations also implicates the statutory limitation of Section

Case 2:16-cr-00046-GMN-PAL Document 706 Filed 10/03/16 Page 10 of 15

3. This Court should suppress evidence obtained from Facebook

in violation of Rule 41 and Section 636(a).