UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
October 25, 2005
UNITED STATES OF AMERICA, PLAINTIFF,
AMR MOHSEN AND ALY MOHSEN, DEFENDANTS.
The opinion of the court was delivered by: William B. Shubb, United States District Judge
MEMORANDUM AND ORDER
RE: MOTION TO SUPPRESS FRUITS OF VEHICLE SEARCH
Defendant Amr Mohsen ("Defendant") moves to suppress the evidence seized from his car on March 30, 2004.
The events of the underlying patent litigation that resulted in perjury and obstruction of justice counts against defendant are well known to the government and defendant. Defendant was indicted in March 2003.
On March 25, 2004, the FBI placed defendant under surveillance, and this surveillance did not end until approximately 10:30 p.m. on March 27, 2004. (Mar. 30, 2004 Weber Aff. in Supp. of Search Warrant for Def.'s Car at 2). At approximately 9:00 p.m. on March 25, 2004, FBI Special Agent Joel Moss saw defendant at the Egyptian Consulate in San Francisco. (Id. at 4).
On March 26, 2004, Mohsen deposited and withdrew large amounts of money from three banks. At approximately 2:30 p.m. on March 26, defendant deposited two checks in the amounts of $30,000 and $34,000 at a Bank of America branch in Santa Clara. (Id. at 2). Approximately five minutes after he left the Santa Clara branch of Bank of America, Mohsen arrived at the Silicon Valley Bank. (Id.). There he deposited a $30,000 cashier's check and withdrew $30,000 in cash. (Id.). Approximately two hours after leaving the Silicon Valley Bank, defendant drove to a Bank of America branch in Sunnyvale. (Id.). There he deposited a check drawn on the State Bank of Boston in the amount of $54,500 and asked for as much cash as possible. (Id. at 2-3). He withdrew $10,000 and was told that the remainder of the deposited funds would be available at midnight that night. (Id.)
The next day, March 27, 2004, at approximately noon, defendant entered a branch of Bank of America in Los Gatos and was observed receiving a stack of United States currency approximately 1.5 inches thick. (Id. at 3). About an hour later, defendant went to a hotel in Los Gatos and used a pay telephone. (Id.). FBI Special Agent Jeffrey Johnson overheard defendant using the words "passport" and "flight arrangements."
Defendant was also overheard by Special Agent Johnson rescheduling an appointment for later that afternoon because he would not be around on Monday (Id.). At about 3:30 p.m., defendant was observed at a dentist's office in Fremont. (Id.). Marivic Simon, an assistant at that office, informed FBI Special Agent David Carr that defendant told her that he was going to be out of town for at least two months. (Id.). Ms. Simon also informed Special Agent Carr that defendant used the office phone to book a flight to Fort Lauderdale. (Id.). At 4:50 p.m. the same day, Special Agent Moss overheard defendant on a public telephone say that he was in the Bay Area and would be there for a few hours. (Id.). At approximately 7:00 p.m., defendant was observed by FBI Special Agent Jason Richards using a pay telephone for about an hour and a half, during which time defendant was overheard trying to book a charter flight from Fort Lauderdale to the Cayman Islands. (Id.). Special Agent Richards also overheard defendant mentioning that one person would be traveling on an Egyptian passport and asking whether he could avoid giving his social security number because he did not want it to be on a computer data base. (Id.). Defendant was also overheard successfully booking a flight to Fort Lauderdale on America West, departing San Jose at 9:00 a.m. the next day, March 28. (Id.).
Defendant was arrested at approximately 10:30 p.m. on March 27, 2004. (Id. at 4). Incident to arrest, FBI Special Agent Bruce Whitten recovered approximately $20,000 in $100 bills and an Egyptian passport, apparently issued by the Egyptian Consulate in San Francisco on March 25, 2004, in the name of Dr. Amr Mohamed Abdel-Latif Mohsen. (Id.). Contact information was also founds on defendant's person for Alaf Elmazariky, Consul General of Egypt, Western States, and Wael Aboulmagd, Counselor for the Embassy of Egypt located in Washington, D.C. (Id.).
Defendant was arrested while driving his 1992 black Mercedes Benz. (Def.'s Mem. in Supp. of Mot. to Suppress Evidence Obtained as a Result of Search of Def.'s Vehicle at 3). The arrest took place in the parking lot of an apartment complex in Campbell. (Mar. 30, 2004 Weber Aff. in Supp. of Search Warrant for Def.'s Car at 4). After the arrest, defendant's vehicle was towed to an FBI garage facility. (Def.'s Mem. in Supp. of Mot. to Suppress Evidence Obtained as a Result of Search of Def.'s Vehicle at 3). On the next day, March 28, agents reported taking an inventory of the vehicle's contents and removing a black wallet, two checkbooks, and a laptop computer. (Id. at 3-4).
On March 30, 2004, the court granted the government's request for a search warrant. (Id. Ex. A (warrant)). Attachment A to that warrant authorized seizure of the following items:
1. Any and all tickets, notes, papers, documents, receipts, and other written items used for, relating to and/or reflecting any travel arrangements from on or about January 1, 2004 to any date in the future, including but not limited to telephone numbers, telephone calling cards, toll free numbers, business cards, and domestic and foreign travel reservations, for Amr Mohsen and/or any relative of Amr Mohsen;
2. Any all United States and foreign currency, money orders, tellers checks, cashiers checks, travelers checks and papers, documents, notes, receipts, checks, ledgers, invoices, statements, and other written items relating to and reflecting the withdrawal, deposit, transfer, debit and any other transactions of United States and/or foreign currency from any and all United States and foreign financial institutions in the name of and/or for the benefit of Amr Mohsen and/or any relative of Amr Mohsen from on or about January 1, 2004 to any date in the future;
3. Any and all passports, documents, notes, receipts, checks, invoices, statements, business cards and other written items relating to and reflecting Amr Mohsen's and/or any relative of Amr Mohsen's application for and receipt of an Egyptian passport between on or about April 8, 2003 and any date in the future;
4. Any and all computers, computer disks, memory sticks, hard drives, and other computer media capable of storing information relating to any and all items reference[d] in paragraphs 1 through 3, including a search of any electronic media contained therein.
(Id. Ex. A (warrant)).
On March 30, 2004, the search of defendant's vehicle was conducted. (Pl.'s Mem. in Opp'n to Def.'s Mot. to Suppress Evidence Obtained as a Result of Search of Def.'s Vehicle Ex. 2 (Apr. 1, 2004 FBI post-search documents). The following items of evidence were seized: (1) yellow notepad with miscellaneous white paper documents; (2) e-mail printouts; (3) bank documents; (4) yellow notepad; (5) miscellaneous documents. (Id.). Investigators also created a forensic image of the computer found in defendant's car. (Id.). "Through review of the data contained on the working copy, data and/or documents deemed pertinent to the investigation were identified, exported and provided to the investigator in report format." (Id.).
A. The Effect of the Unlawful Arrest on the Subsequent Search of Defendant's Vehicle Pursuant to a Warrant
By another order, the court held that the warrantless arrest of defendant was not made pursuant to any statutory authority, and therefore that certain items found on defendant's person may not be admitted into evidence. The issue addressed in this memorandum is whether the items found in defendant's car must also be suppressed.
"Under the exclusionary rule, law enforcement officers may not use information obtained in violation of the exclusionary rule to establish probable cause justifying a search." United States v. Roberts, 747 F.2d 537, 541 (9th Cir. 1984). However, so long as there are sufficient grounds to establish probable cause for a subsequent search independent of any unlawfully obtained evidence, and a warrant issues based on that independent evidence, the independent source doctrine applies and the second search does not violate the Constitution. Nix v. Williams, 467 U.S. 431, 443-44 (1988); see id. at 443 ("The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse position, tha[n] they would have been in if no police error or misconduct had occurred.").
At the time that the affidavit for the search of defendant's car was submitted to the magistrate, the officers had already arrested defendant and discovered that he had an Egyptian passport on his person. (Mar. 30, 2004 Weber Aff. in Supp. of Search Warrant for Def.'s Car at 4). Pursuant to the order addressing defendant's arrest, the passport will be suppressed. However, even absent the evidence the government secured pursuant to the arrest, the government had sufficient probable cause to believe that defendant had applied for a passport in the past. Defendant was seen at the Egyptian consulate at 9:00 p.m. on the 25th. (March 30, 2004 Weber Aff. in Supp. of Search Warrant for Def.'s Car at 4). Defendant was overheard attempting to book a charter flight out of the country. (Id. at 3). Defendant was seen withdrawing tens of thousands of dollars in cash from local banks. (Id. at 2-3). He told an assistant at the dentist's office that he would be out of town for at least two months. (Id. at 3).
The totality of the circumstances, even absent any evidence secured through defendant's arrest, show that law enforcement agents had probable cause to believe that defendant had violated 18 U.S.C. § 401 by applying for a passport or by not surrendering his passport, since the evidence shows that defendant was making plans to travel outside the United States on March 28, 2004.*fn1 The agents also had probable cause to believe that circumstantial evidence of defendant's application for a passport would be found in the car, because defendant had used the car to drive to various banks and withdraw cash. (Id. at 2-3) ("Mohsen drove to another Bank of America branch in Sunnyvale"; "The following day, Mohsen drove to a Bank of America branch"). In addition, although not explicitly stated in the Weber affidavit, it is likely that Mohsen used his car to go to the Egyptian consulate in San Francisco on March 25 at 9:00 p.m., where he was observed by Special Agent Moss, (id. at 4), since Mohsen resides in Los Gatos and not San Francisco. (Moss. Decl. ¶ 8).
B. Agents' Good Faith in Executing the Warrant
To the extent that the Weber affidavit is not explicit in its statement that the vehicle was an instrumentality of the crime or why evidence of the crime would likely be found in the vehicle, the Leon good faith exception applies. See United States v. Leon, 468 U.S. 897 (1984). Where a facially valid search warrant issues, and the officer's conduct in relying on that search warrant is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way, even if the warrant is subsequently invalidated. Id. at 918-920. Here there is no evidence that Weber's affidavit misled the magistrate, that the magistrate abandoned his obligation to be neutral and detached, or that the warrant was so lacking in indicia of probable cause as to render official belief in its existence unreasonable. See id. at 923 (situations in which good faith exception would not apply). To the contrary, in this case the agents had made even more observations linking the vehicle to the crime than were set forth in the warrant. Joel Moss, an FBI Special Agent, states: "I personally saw Mohsen drive up to the Egyptian Consulate in San Francisco, California. I watched Mohsen park his car on the street near the Egyptian consulate." (Moss Decl. ¶ 9) (emphasis added). This is indeed a strong case for Leon to apply: not only did the agents have a facially valid warrant at the time of the search of the vehicle, at least one officer had observed additional inculpatory details that were not reflected in the Weber affidavit.
Further, to the extent that the warrant authorized a search for evidence that defendant was planning to leave the jurisdiction, which would not be contempt of court, rather than evidence that he had applied for a passport, which would be contempt of court, the Leon good faith exception applies. The agents acted in the good faith belief, pursuant to a facially valid warrant, that planning to leave the jurisdiction with intent to leave the jurisdiction was criminal contempt of court. There is no evidence of any objective bad faith on the part of the officers who conducted the search. (See Walker Decl. (outlining screening procedures used by the government)). As can be seen in the order addressing the validity of the arrest, the law regarding contempt of court and attempted contempt of court is complex, and in some ways cuts against common sense. See Briggs v. Malley, 748 F.2d 715, 719 (1st Cir. 1984) (in the context of considering whether police officers may be held personally liable for seeking search or arrest warrants, noting that "police officers cannot be held to the standards of lawyers or judges"). Suppression of the search of the car in this case would not serve the deterrence goal of the Fourth Amendment.
C. Defendant's Additional Arguments
Defendant offers two additional arguments for why the fruits of the search of the car should be suppressed: (1) that the procedure did not adequately protect lawyer-client privilege; and (2) that the warrant was overbroad, especially as relates to the computer found in Mohsen's car. The first argument is addressed in the court's memorandum and order regarding search of defendant's jail cell. Once again, Mohsen has not shown any actual prejudice from the seizure of any allegedly privileged document*fn2 See United States v. Irwin, 612 F.2d 1182, 1187-90 (9th Cir. 1980) (holding that burden was on defendant to show that he was substantially prejudiced by government's invasion of attorney-client privilege). Should defendant present evidence of actual prejudice, nothing in this memorandum should be construed as foreclosing the appropriate remedy.
Defendant's second argument, that the warrant was overbroad, is foreclosed by United States v. Meek, 366 F.3d 705 (9th Cir. 2004). In that case, a warrant issued to search the defendant's home for:
numerous items related to the seduction and exploitation of children: sexually explicit material or paraphernalia used to lower the inhibition of children, sex toys, photography equipment, child pornography, as well as material related to past molestation such as photographs, address ledgers including names of other pedophiles, and journals recording sexual encounters with children. Because the suspected commission of this crime involved the use of the Internet, the warrant also included computer equipment, information on digital and magnetic storage devices, computer printouts, computer software and manuals, and documentation regarding computer use.
Id. at 714-15. That warrant effectively enabled law enforcement to search through all files created with a word processor ("journals recording sexual encounters"), a photography or image program ("child pornography"), all spreadsheets ("address ledgers including names of other pedophiles"), and all electronic mail ("material related to past molestation"). Meek does not indicate that the warrant required the searching agents to use search terms or other ways to limit the documents that were searched.
Meek court found that "the warrant is sufficiently specific." Id. at 715. "[T]he warrant here did not authorize the seizure of virtually every document and computer file without indicating how items were related to the suspected crime." Id. (quotation marks and citation omitted). "The proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation." Id. at 716; compare United States v. Riccardi, 405 F.3d 852, 862-64 (10th Cir. 2005) (warrant to seize and examine defendant's computer overbroad where not limited to any particular files or any particular crime; nevertheless, Leon good faith exception applied because officers did not conduct a "fishing" expedition in their execution of the warrant).
In this case, the warrant was sufficiently specific. The warrant authorized a search for evidence of travel plans, evidence of monetary transactions, and evidence of passport applications. Mohsen was suspected of planning to leave the country and was suspected of having applied for a passport to enable him to do so. In those circumstances, the search warrant was reasonably circumscribed to evidence regarding that allegation.*fn3
IT IS THEREFORE ORDERED that defendant's motion to suppress the evidence seized as a result of the search of the Mercedes with California license plate "APTIX" be, and the same hereby is, DENIED.