DONALD C. RANDOLPH, ESQ., California State Bar Number 62468 RANDOLPH & LEVANAS 1717 Fourth Street, Third Floor Santa Monica, California 90401 Telephone: (310) 395-7900 Attorneys for Defendant KEVIN DAVID MITNICK UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, vs. KEVIN DAVID MITNICK, et. al, Defendants. Case No. CR 96-881-MRP NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION AND EXHIBITS DATE: April 5, 1999 TIME: 1:30 p.m. CTRM: 12 TABLE OF CONTENTS Page I. INTRODUCTION 3 II. STATEMENT OF FACTS 4 III. ARGUMENT 9 A. WITH THE GOVERNMENT'S ACQUIESCENCE AND KNOWLEDGE, AND THE INTENT TO ASSIST THE GOVERNMENT, TSUTOMU SHIMOMURA ACTED AS AN INSTRUMENT OR AGENT OF THE GOVERNMENT 9 B. THE GOVERNMENT USED SHIMOMURA'S INVOLVEMENT TO CIRCUMVENT THE WARRANT REQUIREMENT OF 18 U.S.C. § 2511 13 C. INFORMATION FROM ILLEGALLY INTERCEPTED COMMUNICATIONS CANNOT BE USED IN AN AFFIDAVIT TO SUPPORT PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA 15 1. Disclosure of the Illegally Intercepted Communications Violated 18 U.S.C. § 2511; Therefore the Intercepts Cannot Be Used Before Any Court or Officer. 15 2. The Tainted Evidence Must be Excised From the Affidavit To Support The Search Warrant. 17 D. THERE WAS NO PROBABLE CAUSE TO SEARCH AFTER THE UNLAWFULLY INTERCEPTED COMMUNICATIONS AND EVIDENCE DERIVED THEREFROM ARE EXCISED FROM THE AFFIDAVIT FOR THE SEARCH WARRANT 18 IV. CONCLUSION 22 TABLE OF AUTHORITIES Page United States Code 18 U.S.C. § 2511 .................................. 3, 13, 14, 15 18 U.S.C. § 2515 ................................... 1, 3, 16, 22 18 U.S.C. § 2518 ........................................... 1, 4 Cases United States v. Donovan, 97 S.Ct. 658 (1977) ..................................... 16 United States v. Gelbard, 92 S.Ct. 2357 (1972) ................................ 15, 16 United States v. Attson, 900 F.2d 1427 (9th Cir. 1990) ....................... 10, 13 United States v. Pervaz, 118 F.3d 1 (1st Cir. 1997) ............................. 11 United States v. Vasey, 834 F.2d 782 (9th Cir. 1987) ................ 17, 18, 19, 22 United States v. Walther, 652 F.2d 788 (9th cir. 1981) ..................... 9, 11, 12 United States v. Wanless, 882 F.2d 1459 (9th Cir. 1989) ............... 17, 18, 19, 22 Reports Senate Report No. 1097, 90th Congress, Second Session (1968) .................... 15 DONALD C. RANDOLPH, ESQ., California State Bar Number 62468 RANDOLPH & LEVANAS 1717 Fourth Street, Third Floor Santa Monica, California 90401 Telephone: (310) 395-7900 Attorneys for Defendant KEVIN DAVID MITNICK UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, vs. KEVIN DAVID MITNICK, et. al, Defendants. Case No. CR 96-881-MRP NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION AND EXHIBITS DATE: April 5, 1999 TIME: 1:30 p.m. CTRM: 12 TO: ASSISTANT UNITED STATES ATTORNEYS DAVID SCHINDLER AND CHRISTOPHER PAINTER PLEASE TAKE NOTICE that on April 5, 1999, at 1:30 p.m., or as soon thereafter, as the matter may be heard before the Honorable Mariana Pfaelzer, defendant Kevin Mitnick, by and through his attorney of record, Donald C. Randolph, will move, and hereby does move, the Court for an order suppressing evidence seized during the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina and the fruits of the same. This motion is based 18 U.S.C. § 2515 and § 2518(10)(a), upon the records and files of this case, upon these moving papers including the attached memorandum of points and authorities and declaration, and upon such oral and/or documentary evidence as may be presented at the hearing of the motion. Incorporated in full is the Motion to Suppress based on the U.S. Constitution and the Fourth Amendment, submitted to this court on the same day. DATED: March __, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________ DONALD C. RANDOLPH Attorneys for Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION For the reasons set forth herein, all evidence seized in the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina, and the fruits thereof, must be suppressed: Under 18 U.S.C. § 2511, an electronic communication is illegally intercepted when a government agent intercepts and/or is provided with the content of those intercepts without providing the wire or electronic service with a court order signed by an authorizing judge. Here, Tsutomu Shimomura and his associate, Andrew Gross, acting as government agents, illegally intercepted wire communications without such a court order. The information from these illegal intercepts was used to provide probable cause in an affidavit supporting the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina. Under 18 U.S.C. § 2515, no part of the contents of an illegally seized wire communication may be used in any proceeding before any court or officer of the United States. This illegally seized evidence was brought before a magistrate judge in the affidavit presented as evidence of probable cause to search the apartment. This evidence is tainted by its illegal interception and must be excised from the affidavit. Without this information, the affidavit does not provide probable cause to search the apartment. As authorized under 18 U.S.C. § 2518(10)(a)(1), the defendant moves to suppress the wire or oral communications intercepted in violation of sections 2511 et. seq., and "evidence derived therefrom." Thus, the defendant moves to suppress all evidence obtained as a result of the February 15, 1995 search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina, and the fruits of the same, including any statements made by the Defendant. II. STATEMENT OF FACTS 1 On December 25, 1994, Tsutomu Shimomura's computer system at the San Diego Supercomputer Center (SDSC) was compromised by an unknown intruder via the internet. In early January, after making a presentation about the break-in at the Computer Misuse and Anomaly Detection Conference, Shimomura spoke to Martha Stansell-Gamm, a Justice Department employee in the computer crime section. (p. 177) She called Shimomura back on January 19, 1995 to let him know that she had told the FBI to contact him. On January 20th, Shimomura spoke to Agent Richard Ress of the FBI who assured him that they would do everything they could to be helpful. Later that day, Andrew Gross, Shimomura's associate at SDSC, spoke with Agent Levord Burns, the FBI's top computer crime field agent, filling him in on what had occurred so far. (p. 187) On January 28, 1995, Shimomura learned that files copied from his computer system were found stored at the Well, by an unknown intruder. Shimomura sent Gross to the Well to investigate. After a few days, Shimomura joined Gross for a meeting with the Well staff, after which he called Agent Burns to update him on the monitoring of the intruder. (p. 248-249) The next day, Gross spoke to Kathleen Carson, the local FBI agent working on Kevin Mitnick's case, to let her know about the activity at the Well. That afternoon, Shimomura and Gross met with the Well staff, Kent Walker from the San Francisco U.S. Attorney's office, and two FBI agents, Pat Murphy and Barry Hatfield. (p. 256) At the meeting, Shimomura outlined what the strategy should be: "the only way we could secure the Well against the threat was to go and apprehend it. Instead of a duck-and-cover posture, we needed to shift into attack mode." (p. 257) According to Shimomura, AUSA Walker said, "We're going to be serving as legal and administrative backup for you." (p.264) During the meeting, three vice-presidents from Netcom called in, pledging their support in any way possible. AUSA Walker and the FBI agents told the Netcom employees that they would be in touch. (p. 259) Soon after that, Shimomura moved operations to Netcom, where he met with Netcom staff, including Robert Hood, the Network Manager. Shimomura "made it clear that our goal was to locate our quarry as quickly as possible and keep moving upstream until we pinned him down." (p. 298) Using information gathered from the interceptions at the Well, Shimomura worked with Robert Hood to track the intruder. They compared the time of the dropped connections from the Well to the logout times from Netcom. (p. 301) Using this information, "it became increasingly obvious that there was a single account that matched with the log-ins of the trespasser at the Well in each case." (p. 304). All of the remote direct dial-up access came through Netcom's dial-up number in Raleigh, North Carolina. Once this was discovered, Shimomura called Kent Walker to get a trap-and-trace order for the Raleigh dial-up number. Walker said he would do it first thing the next morning. (p. 307) The next day, when Shimomura contacted Walke r, he told Shimomura that the trap-and-trace would be up by the end of the day. In the mean time, Shimomura and Hood watched the keystrokes of the intruder, including an on-line conversation with another person. Later that night, the intruder logged on through the Raleigh number. Shimomura immediately called Agent Burns, but the trap-and-trace was not working. Agent Burns told him to call him back if the intruder logged in again. When he logged in, Shimomura let Agent Burns know. Thirty minutes later, Agent Burns called back to say they had a successful trace to a Sprint Cellular phone number. (p. 361) The next day, Shimomura called AUSA Kent Walker to update him on the investigation; they arranged to meet later that day. At the meeting with Walker, Shimomura pressed him to get a trap-and-trace order for Sprint Cellular in Raleigh, North Carolina. Walker said he could do it. (p. 399) Shimomura then contacted Kathleen Cunningham, the United States Marshall on Kevin Mitnick's case to learn more information on how Mitnick operated. (p. 395). Next, Shimomura called Agent Burns to learn of any follow-up on the traced phone number. Burns agreed that he could have Shimomura talk directly to the Sprint technician through a three-way conference call. (p. 391) Using the information from the Netcom login sessions, Shimomura and the Sprint technician, James Murphy, attempted to match the Netcom logins to Sprint calls. (p. 410-413) Through this technique they were able to narrow down the origin of the calls to within a kilometer. (p. 413) At this point, Shimomura let Agent Burns know that trace orders were needed for both Sprint Cellular and Cellular One in Raleigh. (p. 413-414) The next day, Shimomura flew to Raleigh, North Carolina. While on the flight, he contacted Agent Burns to find out the status of the trace orders for Sprint and Cellular One. (p. 417) Once in Raleigh, he was met by the Sprint technicians who immediately took him to the Sprint Mobile Telephone Switching Office where they met Lathell Thomas, a local FBI agent. (p. 420) Shimomura worked with the Sprint technicians to try to find any activity on the phone numbers determined from the Netcom logins. Shimomura's involvement continued up to the point of the surveillance of the Player's Club Apartments -- to make the antenna on the van look less suspicious, he suggested strapping boxes on the roof. (p. 454) He was in the local AUSA John Bowler's van during the search of Mitnick's apartment. In his affidavit written in support of the search warrant for Apartment 202, 4550 Tournament Drive, Agent Burns details the findings of Shimomura's investigations to provide probable cause for the search. (See the affidavit to the search warrant, at Exhibit A). The next year, Shimomura wrote a book, Takedown, with John Markoff, a New York Times reporter, detailing his involvement in the search for and arrest of Kevin Mitnick. Two years later, his role was still remembered: The Director of the FBI, Louis Freeh, acknowledged Shimomura's role in a speech at the International Computer Crime Conference in New York on March 4, 1997: "You may remember when we arrested Mr. Mitnik [sic] a year or so ago. He was found by the FBI, but he was found because we hired a 23-year-old computer specialist to locate exactly where he was and where he was transmitting from. That was the basis of effecting that arrest." (emphasis added) (See Speech by Louis J. Freeh, Director of the FBI, p. 2, at Exhibit B) III. ARGUMENT A. WITH THE GOVERNMENT'S ACQUIESCENCE AND KNOWLEDGE, AND THE INTENT TO ASSIST THE GOVERNMENT, TSUTOMU SHIMOMURA ACTED AS AN INSTRUMENT OR AGENT OF THE GOVERNMENT In United States v. Walther, the Ninth Circuit Court of Appeals articulated the standard for determining when a private party is acting as an "instrument or agent" of the government. It is a two-part test: "(1) the government's knowledge and acquiescence [of the challenged conduct], and (2) the intent of the party performing the search." Walther, 652 F.2d 788, 792 (9th Cir. 1981). In Walther, an airline employee opened a "Speed Pak" package on the suspicion that it contained illegal drugs. As a former informant for the DEA, the employee expected a reward from the DEA upon finding drugs in the package. In analyzing the two critical factors listed above, the Court found that the airline employee, in opening the package, was motivated to help the DEA find illegal drugs, not by a legitimate business consideration. In addition, even though the DEA had no knowledge of this particular search before it happened, they had encouraged the employee to engage in this type of search in the past. Therefore, the airline employee was found to have been an agent of the government and the fruits of the illegal search were suppressed. In United States v. Attson (900 F.2d 1427, 9th Cir. 1990), a government-employed physician took blood from the defendant in the emergency room, following a car accident in which the defendant was later found guilty of manslaughter. The Ninth Circuit found that he was not acting as a government agent. In its analysis, the court was required "to gauge whether the party whose actions are challenged intended to assist the government in activities ("searches or seizures") covered by the fourth amendment, or whether his motivation was independent of such consideration." Attson, 900 F.2d at 1432. The court found that the doctor drew blood from the defendant to determine what type of medicines could be administered to him. Therefore, his intent was not to assist the government in its investigation, but for an independent purpose. In a more recent case in the First Circuit Court of Appeals, United States v.Pervaz, one of the issues decided by the Court was whether or not the employees of Cellular One of Boston were acting as government agents while tracking a cloned cellular phone. There, an FBI Agent had notified the employees of potential fraud, but was not aware of any follow-up action taken by the employees. The motivation of the employees was that "customers were being defrauded." Pervaz, 118 F.3d 1 (1st Cir. 1997). Thus, in following the Ninth Circuit's test from Walther and Attson, the court found the employees were not government agents. Here, unlike in Pervaz, Tsutomu Shimomura was not an employee of the cellular phone companies. He was in direct, almost daily, contact with the FBI throughout the investigation. Following the standard laid out in Walther, Shimomura's conduct throughout the investigation was that of a government agent. From the very beginning of his tracking of Mitnick from different computer systems and internet providers, Shimomura was in contact with the FBI. The FBI was fully aware and supportive of Shimomura's in volvement. The government's "knowledge and acquiescence" is illustrated by a statement to Shimomura by Kent Walker of the United States Attorney's office in San Francisco, given at a meeting with Shimomura, the Well staff, and two FBI agents: "We're going to be serving as legal and administrative backup for you." (p.264) From that point on, the government maintained contact with Shimomura, with information flowing between the him and the FBI, including Shimomura advising the government where "trap-and-trace" orders were needed. Shimomura was a crucial part, if not the leader, of the FBI's investigation. Without Shimomura's assistance and knowledge, the government would not have been able to track Mr. Mitnick down. Shimomura even came up with the idea of how to disguise the antenna on the surveillance van in Raleigh. (p. 454). Additionally, Shimomura had no valid purpose except to help the FBI catch Mr. Mitnick. From very early on in the investigation, Shimomura's goal was to apprehend the "threat" to the Well. Rather than work in a defensive mode, he wanted to be in "attack mode." (p.257) Once he moved operations to Netcom, Shimomura explained the mission to the Netcom staff -- to locate and "pin down" their quarry.(p. 298) While Shimomura often expressed impatience with the way the FBI operated, he included himself in the investigatory team: "We had Mitnick, and could track him down immediately. But the longer we took to pull things together, the more likely something was to go wrong." (p. 426) Shimomura's only goal was to see Mr. Mitnick arrested. The facts here are even stronger than those in Walther. In Walther, even though the DEA agents hadn't encouraged the airline employee to conduct that particular search, the employee was still found the be acting as a government agent. Here, the government did nothing but encourage Shimomura to track down Mr. Mitnick. The actions of the doctor in Attson were not covered under the Fourth Amendment because his intent was to treat the patient, not to assist in the investigation of the case. Here, clearly, Shimomura's purpose was to assist, if not lead, the FBI in their investigation into Mr. Mitnick's whereabouts. Following the Ninth Circuit's test, Shimomura was acting as an agent of the government throughout this investigation. B. THE GOVERNMENT USED SHIMOMURA'S INVOLVEMENT TO CIRCUMVENT THE WARRANT REQUIREMENT OF 18 U.S.C. § 2511 18 U.S.C. § 2511 (2)(a)(ii) authorizes employees of a provider of wire or electronic communication "to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral or electronic communications..." (emphasis added). To be authorized by law, the provider must have been given a "court order directing such assistance signed by the authorizing judge" (§ 2511 (2)(a)(ii)(A)). The guidelines for obtaining judicial approval are very stringent, as laid out in 18 U.S.C. §§ 2516 and 2518 (1) - (8). The key to Shimomura's tracking Mr. Mitnick was his ability to view the alleged intruder's actions on the systems of the Well and Netcom, two internet service providers. Shimomura's actions at these sights were at the approval and acquiescence of the government. Under 18 U.S.C. § 2511 (2)(a)(i), employees of a wire communication provider may monitor suspected fraudulent activity; however, under § 2511 (2)(a)(ii), for a government agent to monitor such communications or to be provided with the information from the communications, a court order is required. The government cannot circumvent the warrant requirements of the statute by falsely claiming that Shimomura was not a government agent, but merely working for the various internet providers. The Director of the FBI, Louis Freeh, even acknowledged Shimomura's role in a speech at the International Computer Crime Conference in New York on March 4, 1997: "You may remember when we arrested Mr. Mitnik [sic] a year or so ago. He was found by the FBI, but he was found because we hired a 23-year-old computer specialist to locate exactly where he was and where he was transmitting from. That was the basis of effecting that arrest." (emphasis added) (See Speech by Louis J. Freeh, Director of the FBI, p. 2, at Exhibit A). All of the facts point to the same conclusion - that Shimomura was acting as an agent of the government. Therefore, any interceptions of wire communications that he viewed should only have been viewed after a warrant was obtained. The government cannot be allowed to circumvent a warrant requirement by having private citizens gather information for them in violation of 18 U.S.C. §§ 2511 et. seq. C. INFORMATION FROM ILLEGALLY INTERCEPTED COMMUNICATIONS CANNOT BE USED IN AN AFFIDAVIT TO SUPPORT PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA 1. Disclosure of the Illegally Intercepted Communications Violated 18 U.S.C. § 2511; Therefore the Intercepts Cannot Be Used Before Any Court or Officer. Congress created 18 U.S.C. §§ 2511 et. seq. for the dual purpose of "(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." United States v. Gelbard, 92 S.Ct. 2357, 2361 (1972), quoting Sen. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968) and U.S. Code Cong. & Admin. News,, p. 2153. Central to this legislative scheme of protecting privacy interests is Section 2515: [w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, . . .officer, . . . or other authority of the United States . . . if the disclosure of that information would be in violation of this chapter. (emphasis added). "What disclosures are forbidden, and are subject to motions to suppress, is in turn governed by s. 2518 (10)(a) which provides for suppression of the evidence on the grounds that 'the communication was unlawfully intercepted. . .'" United States v. Donovan, 97 S.Ct. 658, 670 (1977). In addition, the Court in Gelbard explains that Section 2515 also ensures that "the courts do not become partners to illegal conduct" Gelbard at 2363. In Gelbard, two parties were placed in contempt of court for refusing to answer questions as grand jury witnesses until they were afforded an opportunity to challenge the legality of the interceptions of certain conversations. The Supreme Court held that Section 2515 allowed this refusal to testify before the grand jury because the disclosure of contents of the illegal intercept would undermine the intent of Congress, as well as make the Court a party to the unlawful act. It follows that, in order to avoid making the court a partner of illegal conduct, the Court would also apply Section 2515 to the use of unlawfully intercepted communications in an affidavit to support probable cause for a search. A Magistrate Judge who a uthorizes a search relies on the affidavit as providing untainted information. Where a magistrate authorized a search based on tainted information gathered illegally, the court became a partner to that illegal conduct. 2. The Tainted Evidence Must be Excised From the Affidavit To Support The Search Warrant. "It is now fundamental that evidence which is obtained as a direct result of an illegal search and seizure may not be used to establish probable cause for a subsequent search." United States v. Wanless, 882 F.2d 1459, 1465 (9th Cir. 1989), citing United States v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987). The evidence gathered in the unlawful intercepts by Shimomura, acting as a government agent without a warrant, should not have been used in the affidavit to support the search of 4550 Tournament Drive, Apartment 202, Raleigh, North Carolina. Because this evidence made up the bulk of the affidavit, the Magistrate Judge improperly relied on it in determining there was probable cause to search that apartment. All of the evidence gathered by Shimomura and his associate, Andrew Gross, during these illegal intercepts was tainted and should not have been included in the affidavit for the search warrant. However, "[t]he mere inclusion of tainted evidence in an affidavit does not, by itself, taint the warrant or the evidence seized pursuant to the warrant." United States v. Vasey, 834 F.2d 783, 788 (9th Cir. 1987) Rather, "[a] reviewing court should excise the tainted evidence and determine whether the remaining u ntainted evidence would provide a neutral magistrate with probable cause to issue a warrant." Id. D. THERE WAS NO PROBABLE CAUSE TO SEARCH AFTER THE UNLAWFULLY INTERCEPTED COMMUNICATIONS AND EVIDENCE DERIVED THEREFROM ARE EXCISED FROM THE AFFIDAVIT FOR THE SEARCH WARRANT In Wanless, the Court held that investigatory searches based on evidence seized during an illegal inventory search were also illegal. Officers impounded the vehicles belonging to the defendants because there was no one present to drive them off the freeway. Before the vehicles were impounded, inventory searches were conducted, during which evidence of drugs and drug manufacturing was found. However, as an inventory search is done for the protection of the owner of the vehicle, he must first give his co nsent to search. This was not done, thus the Court held that the first searches were illegal. Investigatory searches of the cars, which can only be done if there is probable cause, were done partly based on the illegally seized evidence from the invento ry searches. Without the illegally seized evidence, "the evidence [was] far too scanty to establish probable cause for an investigative search of the two vehicles." Wanless, 882 F.2d at 1465. In Vasey, the police had obtained a warrant to search a vehicle based in part on illegally seized evidence. The Court excluded the illegally seized evidence from the warrant and found that without it, the evidence was "insufficient to establish probable cause." Vasey, 834 F.2d at 788. Here, as in both Wanless and Vasey, after the information about the unlawfully intercepted communications, and the evidence derived therefrom, is excised from the warrant, there is no longer probable cause to support the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina. The majority of the information in Agent Burns' affidavit was gathered through the illegal intercepts. (See the affidavit to the search warrant, at Exhibit A). Beginning with paragraph three on page two of the affidavit, Agent Burns describes information from Mr. Gross obtained from intercepts at the Well, an internet service provider. These intercepts consisted not only of monitoring the alleged intruder's activities, but also of actually reading the content of the files that were transferred into an allegedly compromised account. Paragraph four discusses the content of the files. Paragraph five discusses the origination of most of the intercepted communication. In paragraph six, Agent Burns describes an actual copy of an intercepted session that was provided to him from Gross. Paragraph seven again describes the content of the some of the intercepted files. Paragraph eight describes information given to Agent Burns from Robert Hood, the Network Manager for Netcom. Hood told Agent Burns that the alleged intruder had used a local dialup number multiple times in Raleigh, North Carolina. Hood learned this information by intercepting the intruder's communications. However, there was never a court order allowing Netcom to give this information to the government or a government agent without violating 18 U.S.C. 2511. Paragraphs nine and ten describe information gained from Sprint Cellular and Cellular One in North Carolina. This information was gained through the use of "trap-and-trace" orders. However, the instruction to set trap-and-trace orders on these lines came from Shimomura, who used the unlawful intercepts to determine where the trap-and-trace orders were needed. In addition, at the end of paragraph 10, there is again a reference to Netcom providing information from the intercepted communication to the government without a court order: "Robert Hood, Netcom, advised the affiant that all login sessions relating to paragraphs 9 & 10 passed through the account of gkremen."(See affidavit to the search warrant, page 5, at Exhibit A). Some of the most telltale evidence that the information in the affidavit was obtained without proper court authority comes from statements in the affidavit itself. In particular, in paragraph 11, Agent Burns describes how Netcom provided logging information from the intercepted communications directly to Shimomura, who then used this information to track the alleged intruder to Raleigh, North Carolina. This unlawfully intercepted information was used to compare Netcom's records to Sprint Cellular's records to determine that the calls made on the Sprint phone were indeed the same calls made to Netcom. In paragraph 12, Joseph Orsack of Sprint Cellular indicated that he was able to narrow the area from which the cellular phone calls to Netcom originated, based on the same information provided by Netcom. In addition, in paragraph 14, Agent Burns states that "Records obtained from Robert Hood, Netcom, indicate that computer hacking sessions took place as a direct result of the cellular hacker activities referenced in paragraphs 9 & 10." (See affidavit to search warrant, pages 7-8, at Exhibit A). Agent Burns then goes on to list several of the illegally intercepted communications as the basis for probable cause to search an apartment at the Player's Club apartment in Raleigh. Once all of the references to the unlawful interceptions and evidence derived therefrom are excised from the affidavit, the only paragraphs remaining are one, two, and thirteen. Paragraphs one and thirteen describe Agent Burns' experience. Paragraph two describes the break-in to Shimomura's computer system, which was the impetus for his involvement in the FBI's investigation and has never been connected to Mr. Mitnick. As in Wanless and Vasey, what is left after the tainted information is excised from the afficavit is certainly not sufficient to establish probable cause to search the apartment. IV. CONCLUSION The information from the unlawfully intercepted communications should not have been used in the affidavit to support the search on February 15, 1995 of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina. Without the excised portions of the affidavit, there was no probable cause to support the search of the apartment. Therefore, all of the evidence obtained in this illegal search, and the fruits thereof, should be suppressed by the Court under 18 U.S.C. § 2515. DATED: March ___, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________ DONALD C. RANDOLPH Attorneys for Defendant KEVIN DAVID MITNICK DECLARATION OF TAMATHA RICHARDSON SCHREINERT I, Tamatha Richardson Schreinert, hereby state and declare as follows: 1. I am at attorney at law licensed to practice in all the courts of the State of California. I am an associate in the law firm of Randolph & Levanas, attorneys of record for defendant Kevin David Mitnick. 2. I have reviewed Tsutomu Shimomura's account of the search for and seizure of Kevin David Mitnick in Takedown, by John Markof and Tsutomu Shimomura. Upon review of Mr. Shimomura's statements in the book, I believe the facts contained in the Memorandum of Points and Authorities to be true. 3. Mr. Shimomura will be subpoenaed to testify at the hearing on this matter, scheduled for April 5, 1999 at 1:30 p.m., Courtroom 12. (See attached copy of Subpoena at page 24a). I declare under penalty of perjury that the foregoing is true and correct. Executed this 15th day of March, 1999, at Los Angeles, California. _____________________________ TAMATHA RICHARDSON SCHREINERT 1 All page numbers are in reference to Takedown, by Tsutomu Shimomura and John Markoff, published in 1996, written about the pursuit and capture of Kevin Mitnick. 1 5