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, ) Case No. CR 96-881-MRP ) Plaintiff, ) NOTICE OF MOTION AND MOTION vs. ) TO SUPPRESS EVIDENCE; ) MEMORANDUM OF POINTS AND KEVIN DAVID MITNICK, et. al, ) AUTHORITIES; DECLARATIONS OF ) KEVIN D. MITNICK AND JOHN Defendants. ) YZURDIAGA; 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 11 A. STANDING 11 B. THE SEARCH OF 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA WAS WITHOUT A VALID WARRANT 12 C. THE AFFIDAVIT ON ITS FACE FAILS TO PROVIDE PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA 14 1. An Affidavit in Support of a Search Warrant Must Set Forth Probable Cause to Search a Particular Location. 14 D. THE AFFIDAVIT ON ITS FACE FAILS TO PROVIDE PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA 17 1. Information From A Citizen Informant Must Be Corroborated For An Affidavit in Support of a Search Warrant To Set Forth Probable Cause. 17 E. THE WARRANT AND RESULTING SEARCH ARE INVALID BECAUSE THE SEARCH WARRANT WAS ISSUED BY A JUDICIAL OFFICER WHOSE NEUTRALITY HAD BEEN COMPROMISED 22 F. THE WARRANT AND RESULTING SEARCH ARE INVALID FOR FAILURE TO FOLLOW THE PROCEDURE LAID OUT IN RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE 24 G. THE WARRANT IS LACKING IN SUFFICIENT SPECIFICITY, THEREFORE REQUIRING THE SUPPRESSION OF CERTAIN ITEMS SEIZED 26 1. A Warrant Must Describe with Particularity the Items to be Searched and Seized. 26 2. The Scope of the Search Authorized by the Warrant was Overbroad. 28 H. THE LEON EXCEPTION TO THE EXCLUSIONARY RULE DOES NOT APPLY IN THE ABSENCE OF GOOD FAITH 30 IV. CONCLUSION 32 TABLE OF AUTHORITIES Page United States Constitution Fourth Amendment ......................................... 14, 17 Rules Federal Rules of Criminal Procedure Rule 41 ................................................. 24 Cases Andresen v. Maryland, 427 U.S. 463 (1976) ................................. 15, 26 Coolidge v. New Hampshire, 403 U.S. 443 (1971) ................................. 12, 22 Illinois v. Gates, 103 S.Ct. 2317 (1983) ............................... 14, 18 Johnson v. United States, 333 U.S. 10 (1948) ...................................... 22 United States v. Leon, 104 S.Ct. 3405 (1984) ............................... 30, 31 Lo-Ji Salas v. New York, 442 U.S. 319 (1979) ................................. 22, 23 Rakas v. Illinois, 439 U.S. 128 (1978)...................................... 11 Simmons v. United States, 390 U.S. 377 (1968) ..................................... 33 Wong Sun v. United States, 371 U.S. 471 (1963).................................. 12, 14 United States v. Angulo-Lopez, 791 F.2d 1394 (9th Cir. 1986) ................... 18, 19, 21 United States v. Becker, 23 F.3d 1537 (9th Cir. 1994) ............................ 12 United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982) ............................. 28 United States v. Gagnon, 635 F.2d 766 (10th Cir. 1981) cert.denied, 415 U.S. 1018 (1981) ............... 18, 19, 21 United States v. Gitcho, 601 F.2d 369 (8th Cir. 1979) cert. denied 444 U.S. 871 (1979) ........................ 16 United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988) ....................... 15 In re Grand Jury Investigations Concerning Solid State Devices, Inc. et al., v. United States, 130 F.3d 853 (9th Cir. 1997) ............................ 29 In re Grand Jury Subpoenas, 926 F.2d 847 (9th Cir. 1991) ............................ 26 United States v. Kaye, 432 F.2d 647 (D.C. Cir. 1970) ....................... 15, 16 United States v. Kow, 58 F.3d 423 (9th Cir. 1995) ................. 26, 27, 28, 29 United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) ............................ 27 United States v. Ocampo, 937 F.2d 485 (9th Cir. 1991) ............................ 14 United States v. Owens, No. 86-0370, 1986 U.S. Dist. LEXIS 17553 (D. Md. Nov. 18, 1986) .................. 16, 17 United States v. Roberts, 747 F.2d 537 (9th Cir. 1984) ............................ 18 United States v. Salas, 879 F.2d 530 (9th Cir. 1989) cert. denied, 493 U.S. 979 (1989) ............... 18, 19, 21 United States v. Stefanson, 648 F.2d 1231 (9th Cir. 1981) ........................... 25 United States v. Towne, 997 F.2d 537 (9th Cir. 1993) ............................ 31 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; DECLARATIONS OF KEVIN D. MITNICK AND JOHN YZURDIAGA; 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 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 mo tion. 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 following reasons, all evidence seized in the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina must be suppressed: 1. The search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina was warrantless and without consent. 2. Considering the totality of circumstances, the affidavit offered in support of the belated search warrant for 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina is devoid of all probable cause because it fails describe with particularity the apartment and building to be searched. 3. The affidavit is devoid of probable cause because the informant's statements were not corroborated. 4. The affidavit is devoid of probable cause because the neutrality of the judicial magistrate issuing the warrant was compromised. 5. The procedure laid out in the Federal Rule of Criminal Procedure 41 was violated. 6. The warrant is lacking in specificity as it is unconstitutionally overbroad. In light of this, 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 must be suppressed. II. STATEMENT OF FACTS1 Sometime prior to February 12, 1995, certain private citizens, agents of the FBI, representatives of cellular telephone companies, and members of the staff of the Unites States Attorney's Office for the Eastern District of North Carolina were engaged in the investigation which culminated in the indictment in this case. Prior to that time, investigators had concluded that certain alleged instances of computer intrusion or "hacking" had been accomplished through the use of one or more cellular telephones as a means of access to certain Internet providers. The private citizens investigating the case concluded that the person or persons responsible for the intrusions were gaining access to the Internet through local access numbers, specifically designed to provide Internet access without incurring long-distance telephone charges. On or about February 12, cellular engineers utilizing electronic tracking equipment believed that they had identified the particular cell site in Raleigh, North Carolina through which certain cellular telephone calls had been made to Internet local access numbers in Raleigh, Minneapolis, Minnesota, Denver, Colorado, and San Jose, California. By electronically monitoring the cell site for radio transmissions from particular cellular telephones, agents concluded on or about the 13th of February that the origin of cellular phones was being operated from either apartment number 107 or 108 in the Player's Club Apartment complex at 4640 Tournament Drive in Raleigh.2 Sometime prior to 9:00 p.m. on the evening of February 14, government agents, including AUSA Bowler and special agents of the FBI went to the residence of Magistrate Judge Dixon. When the contingent of agents and prosecutors arrived they informed Judge Dixon that they were not sure of where the suspect was but believed that he was somewhere at the Player's Club Apartments. The documents submitted in support of the search warrant application included a pre-printed form captioned "Application and Affidavit for Search Warrant" which apparently bore the signature of FBI Special Agent Levord Burns. Attached to that form was a typed list of items which represented the items for which the permission to search was being requested. Among the items listed are the following: "computers and any software contained therein" and "Computer Software, computer chips, computer circuit boards, computer chip programmers or 'E-Prom burners.'" There are no qualifying or limiting notations pertaining to these items. Also listed are "...personal electronic or hand written organizers or phone directories, scheduling calendars;" and "Records reflecting the rental of any safety deposit box or mail box, and any keys to safety deposit or mail boxes." There is no mention of any of these items in the supporting affidavit. The "probable cause" to justify the search was set forth in a ten-page typed affidavit by Special Agent Burns, in which Agent Burns outlined specific investigative steps taken and the information gleaned from each to that point. Paragraph 15 on page nine of the affidavit provides the impertinent part as follows: 15. Investigation conducted by electronic tracking measures has narrowed the citus (sic) of the target's cellular phone operation into the computer networks to apartment No. 107 and apartment No. 108, located in Player's Apartment Complex on 4640 Tournament Road in Raleigh, North Carolina. Investigation of the leases on these apartments revealed that apartment No. 107 was leased on February 4, 1995, by a new lessee. This is the precise date on which the target began operating out of the Raleigh, North Carolina area. The other apartment is leased by the girlfriend of the apartment complex's manager, who is not a suspect. (emphasis added). The affidavit contains no reference to apartment 202 in building 4550 of the Player's Club Apartment complex. The complex is comprised of seventeen separately numbered buildings arranged in an irregular triangle shape. Tournament Drive is the name of the thoroughfare which encircles the complex. Situated inside the complex is a centrally located clubhouse, along with a swimming pool, tennis courts and other administrative and recreational facilities. Building 4640 which contains apartment 107 referenced in the affidavit is situated slightly northwest of the clubhouse. Apartment building 4550, the building in which Mr. Mitnick lived in apartment 202, is located diagonally opposite building 4640, slightly southeast of the clubhouse. (See Diagram of the Player's Club Apartments at Exhibit B). While the occupant of apartment 107 moved in on February 4, 1995, the "precise date on which the target began operating" in Raleigh (See Affidavit in Support of the Search Warrant, page 9, at Exhibit A), Mr. Mitnick did not move into apartment 202 in building 4550 until February 7, 1995. Judge Dixon signed several search warrant forms at approximately 9:10 p.m. on February 14, 1995, at least one of which contained no address or physical description of the place to be search. On at least some of said forms in the upper left hand corner just below "In the Matter of the Search of (name, address or brief description of personal property to be search)" appeared the words "Kevin Mitnick" and "Raleigh, North Carolina". These warrants contained neither a street address or a physical description of the property to be searched. In that portion of the warrant which calls for a name, description or location of the premises to be searched appear the words "See attached," referring to the affidavit of Special Agent Burns. (See Search Warrant, page 1, at Exhibit A) As previously noted, the only suspect apartment mentioned in Agent Burn's affidavit is Apartment 107 in building 4640. Judge Dixon instructed the agents to telephonically verify the address once it was discovered. (See FBI Form FD-302, Dated 2/17/95, p. 3, at Exhibit C) Mr. Mitnick arrived in Apartment 202 some time after 1:00 a.m. on the morning of February 15, 1995. At around 1:30 a.m., someone knocked on his door. When Mr. Mitnick asked the person to identify himself, the person said, "FBI." When Mr. Mitnick asked the agent what he wanted, the agent said they wanted to ask him some questions. Five to ten minutes passed, during which time other agents arrived. After conversing through the door, Mr. Mitnick opened the door slightly and spoke through the crack to the agents, including Special Agent Burns. When one of the agents said they wanted to come inside the apartment, Mr. Mitnick told him they could not come inside unless they had a search warrant. As Mr. Mitnick was closing the door, Agent Burns blocked the door with his foot. Mr. Mitnick again asked the agents to leave. At this point approximately five agents forced entry into Mr. Mitnick's apartment. Once inside the agents began looking around in different rooms inside Mr. Mitnick's apartment despite his request to leave unless they had a search warrant. At around 1:45 a.m., Mr. Mitnick called his attorney who, over the telephone, spoke with the agents and asked if they had a search warrant. (See Sprint Long Distance Bill, page 2, at Exhibit D, and Declaration of John Yzurdiaga, at page 36) At that point Agent Burns said that he was going to get a warrant. While Agent Burns was away from the apartment, the other agents continued searching the apartment including under the mattress and through a closet that was closed. One of them found a wallet inside a pocket of a leather jacket which had been buttoned shut. The agents began looking through the wallet, reviewing all of its contents. The Receipt of property seized during the search was prepared at 2:10 a.m. (See the Receipt for Property at Exhibit E). About 30 to 45 minutes after he left, Agent Burns returned to Mr. Mitnick's apartment with a search warrant. In the upper left hand corner of the document appeared the words "Kevin Mitnick" and "Raleigh, North Carolina" in bold type. Next to those words the address of 4550 Player's Apartment, Apartment 202 was handwritten. The FBI Form FD-302 prepared on February 15, 1995 delineates the timing of Mr. Mitnick's apartment: 1:20 AM - arrived, knocked and announced at door of subject. 1:30 AM - obtained entry to residence and attempted to establish identity of subject. Search commences. 2:09 AM - subject telephonically contacted an individual he identifies as his attorney. 2:30 AM - MITNICK is placed under arrest. 3:20 AM - Search is terminated. (See FBI Form FD-302, Dated 2/15/95, at Exhibit F) According to the follow-up FBI Form FD-302, prepared on February 17, 1995, Mr. Mitnick was placed under arrest before Judge Dixon was called to obtain authorization to search. Judge Dixon, who had no contact with the investigative party since sometime after 9:00 p.m., received a telephone call sometime after 2:30 a.m. The caller informed Judge Dixon that the correct apartment was Apartment 202, at which point Judge Dixon verbally authorized agents to conduct a search. (See FBI Form FD-302, Dated 2/17/9 5, p. 4, at Exhibit C). No verbatim recording of this conversation was made, nor were longhand notes of the substance of the conversation, nor a stenographic transcript produced. The defendant is informed and believed that the caller was also not placed under oath at any time during the conversation. III. ARGUMENT A. STANDING Under the Fourth and Fourteenth Amendments to the United States Constitution, a defendant may challenge the admission of evidence seized during an invalid search when the government's actions invade a defendant's reasonable expectation of privacy. See Rakas v. Illinois, 439 U.S. 128(1978). For the purposes of standing, Mr. Mitnick has averred that 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina and its contents were subject to his control and ownership. Mr. Mitnick had a reasonable expectation of privacy to be free of unreasonable searches and seizures of his residence and property. Therefore, he has standing to contest the lawfulness of the seizure at issue. (See Declaration of Kevin David Mitnick). B. THE SEARCH OF 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA WAS WITHOUT A VALID WARRANT One of the most basic constitutional rules in the area of searches and seizures is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment" Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). In addition, the Fourth Amendment strongly protects the privacy interest in the home: "the sanctity of a person's home, perhaps our last real retreat in this technological age, lies at the very core of the rights w hich animate the amendment" U.S. v.Becker, 23 F.3d 1537, 1539 (9th Cir. 1994). Moreover, the exceptions to the warrant requirement are "jealously and carefully drawn," and where a search is made by law enforcement who opt not to obtain prior approval by a judge, there must be "a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative." Coolidge at 455. Where, as here, the government cannot show any "exigencies of the situation," the warrantless search is illegal. Id. If the government cannot justify the search, the Fourth Amendme nt requires exclusion of the "fruits" of the search. Wong Sun v. United States, 371 U.S. 471, 488 (1963). Here, the agents entered Mr. Mitnick's apartment at 1:30 a.m. and in their own words, they "attempted to establish [the] identity of [the] subject. Search commences [sic]." (See FBI Form 302, dated 2/15/95 at Exhibit E). The agents searched the apartment for about one hour after they entered the apartment before "Mitnick is placed under arrest." at 2:30 a.m. The receipt of property seized during the search was prepared at 2:10 a.m. A follow-up FD-302, dated February 17, 1995, describes what happened after Mr. Mitnick was arrested: At this point, SA Burns telephonically contacted Judge Dixon to inform him of the arrest and the actual location of the apartment. SA Burns also requested permission for a [sic] after hour search to be conducted. Judge Dixon approved the search warrant and a copy was given to Mitnick for his review. See FBI Form FD-302, Dated 2/17/95, at page 4, Exhibit C) According to the government agents, the search of Mr. Mitnick's apartment occurred both prior to his arrest and prior to approval from Judge Dixon to search that apartment. Thus, because this was a warrantless search, all of the evidence seized in this illegal search and seizure, and the fruits thereof, must be suppressed. C. THE AFFIDAVIT ON ITS FACE FAILS TO PROVIDE PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA 1. An Affidavit in Support of a Search Warrant Must Set Forth Probable Cause to Search a Particular Location. A search of a residence can be made only pursuant to a warrant issued by a judicial officer upon a showing of probable cause. U.S. Constitution, Amendment IV. The affidavit in support of the search warrant must establish that a crime was committed, and that there is probable cause to believe that the items sought to be seized are located at the place for which the search warrant is issued. See generally Illinois v. Gates, 103 S.Ct. 2317 (1983). If the government cannot justify the search, the Fourth Amendment requires exclusion of the "fruits" of the search. Wong Sun v. United States, 371 U.S. 471, 488 (1963). It has been said that "probable cause exits when, considering the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991). The affidavit must explain the significance or relevance of searching a particular location: It is critical to a showing of probable cause that the affidavit state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises searched. United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988)(emphasis added). Mr. Mitnick's apartment, Apartment 202, 4550 Tournament Drive, Players Club Apartments, in Raleigh, North Carolina was searched by government agents claiming to rely on the authority of a search warrant obtained earlier in the evening from Judge Dixon. Probable cause to justify a search of Apartment 202 must be contained within the affidavit submitted by Agent Burns in support of the search warrant application. As noted above, Apartment 202 is not mentioned a single time in Agent Burn's affidavit. Indeed, the agents did not even know the location of Mr. Mitnick's apartment until some four hours after the warrant authorizing the search of a different apartment was issued. The constitutional mandate of particularity in the description of the place to be searched is aimed primarily at protecting the privacy interest of citizens against the unfocused discretion of law enforcement officers. Andresen v. Maryland, 427 U.S. 463 (1976). In U.S. v. Kaye (432 F.2d 647)(D.C. Cir. 1970) the Court held that a warrant to search a business did not extend to the residential apartment on the second floor. "The store and the apartment were . . . two separate and distinct parts of the building" Id. at 649. If the scope of a warrant designating a store downstairs cannot be extended to include the upstairs residence, it follows that a search warrant designating a certain apartment and building cannot be extended to include an entirely different apartment in another building. In U.S. v. Gitcho (601 F.2d 369 (8th Cir. 1979) cert. denied 444 U.S. 871, 1979), the search warrant listed the wrong address, even though the police had been surveilling the correct apartment. The Court held that the deficiency in the warrant was merely technical because the address on the search warrant didn't really exist and the officers had personal knowledge of the correct apartment. In the instant case, the mistake on the warrant was not technical. Gitcho is distinguishable because (1) the address in the affidavit to the search warrant, 4640 Tournament Drive, Apartment 107, does exist; and (2)the police did not have the correct apartment under surveillance. At the time Judge Dixon signed the blank search warrant, the correct building was not even known, let alone the correct apartment. An efficient and instructing test of whether the specificity requirement has been met in a particular case was articulated in the District Court of Maryland in United States v. Owens, No. 86-0370, 1986 U.S. Dist. LEXIS 17553 (D. Md. Nov. 18, 1986). There, the court observed that if, at the time the warrant was issued, "the police could not point to the correct apartment" the warrant could not pass constitutional muster. Id. at 16. At 9:14 p.m. on February 14, 1995, officers involved in this investigation were not only unable to point to Mr. Mitnick's apartment, but were in fact pointing in the opposite direction -- across the complex, to a different floor in a different building. Having in mind that the warrant as originally issued described no particular apartment, it cannot be principally argued that Mr. Mitnick's apartment was described with the specificity required by the Fourth Amendment. Mr. Mitnick is therefore entitled to suppression of any and all evidence seized on the basis thereof. D. THE AFFIDAVIT ON ITS FACE FAILS TO PROVIDE PROBABLE CAUSE TO SEARCH 4550 TOURNAMENT DRIVE, APARTMENT 202, PLAYERS CLUB APARTMENTS, RALEIGH, NORTH CAROLINA 1. Information From A Citizen Informant Must Be Corroborated For An Affidavit in Support of a Search Warrant To Set Forth Probable Cause. A search of a residence can be made only pursuant to a warrant issued by a judicial officer upon a showing of probable cause. U.S. Constitution, Fourth Amendment. The affidavit in support of the search warrant must establish that a crime was committed, and that there is probable cause to believe that the items sought to be seized are located at the place for which the search warrant is issued. See generally Illinois v. Gates, 103 S.Ct. 2317 (1983). When an affidavit is based upon the word of an informant, the magistrate or judge is to consider the informant's reliability and the basis of his or her knowledge. Gates, 103 S. Ct. at 2332. Additionally, an informant's statements should be reasonably c orroborated by other matters within the officer's knowledge. Gates 103 S.Ct. 2334. Corroboration of key facts with law enforcement is one of the crucial ways to determine reliability of an informant. See United States v. Roberts, 747 F.2d 537, 544 (9th Cir. 1984) (search held reasonable when informant's tip was corroborated by independent police work). In the instant case, Agent Burns, the affiant, clearly relied solely on information from numerous citizen informants. Probable cause may be based on information from a private citizen where the determination of reliability is based on the combination of the nature of the information provided, the informant's opportunity to see or hear the information, and verification by the police. See U.S. v. Salas, 879 F.2d 530 (9th Cir. 1989) cert. denied, 493 U.S. 979 (1989); U.S. v. Angulo-Lopez, 791 F.2d 1394 (9 th Cir. 1986); and U.S. v. Gagnon, 635 F.2d 766 (10th Cir. 1981), cert. denied, 451 U.S. 1018 (1981). In Salas, the informants, a hotel manager and a maid, had observed cocaine and materials for packaging narcotics in the defendant's hotel room. This observation was "corroborated by the personal observations of the officers" and was therefore deemed reliable enough to establish probable cause. Salas, 879 F.2d at 536. In Angulo-Lopez, police corroborated the citizen informants' statements about drug trafficking by conducting surveillance operations on several occasions. The police viewed the exchange of packages or objects at a parking lot, which, when viewed in conjunction with the citizen informants' statements, established probable cause. Angulo-Lopez 791 F.2d at 1398. In Gagnon, while hunting, a private citizen accidently discovered a large newly-built barn. The informant managed to take a handful of the contents of the barn (green leafy substance) to the authorities. The police conducted tests on the substance, determined that it was indeed marijuana, and obtained a search warrant based on this corroboration of the informant's information. See Gagnon 635 F.2d at 767-68. Here, unlike in the above cases, there was no evidence in Agent Burns' affidavit that he did any independent investigation at all to determine the validity of the information provided by the informants, even though this was highly technical information obtained using technical equipment. He clearly relied solely on the word of the informants that they were providing truthful information. There are numerous things that Agent Burns could have done to corroborate the information given to him, including: * verify the identity of the occupant of the correct apartment, the nature and length of the occupant's lease, including when the lease began, and whether a description of the rightful occupant of the apartment conforms with the description of the suspect ; * check on the background and expertise of Andrew Gross, System/Network Administrator, San Diego SuperComputer Center; * verify the information given by Mr. Gross regarding the alleged break-in to Tsutomu Shimura's computer system; * verify the information from Mr. Gross regarding the activities of an alleged intruder at the Well, an internet provider, including how Mr. Gross obtained this information and how he came into possession of the copy of one session of the alleged intruder ; * check on the background and expertise of Robert Hood, a Network Manager at Netcom, an internet service provider; * verify information from Mr. Hood regarding the activities of an alleged system intruder, including how Mr. Hood obtained this information; * verify information from Mr. Hood regarding cellular phone activity for the Netcom dialups and how this information was obtained; * check on the background and expertise of James Murphy, Maintenance Engineer, Sprint Cellular; * check on the background and expertise of Gary Whitman of Cellullar One; * verify information from Mr. Whitman regarding alleged cellular phone activity and how this information was obtained; * check the background and expertise of Tsutomu Shimomura; * check the background and expertise of Joseph Orsak, Senior Maintenance Engineer for Sprint Cellular; * verify information from Mr. Orsak, including how he identified the particular cell site in the Raleigh area; or * examine the equipment used by any of these citizen informants. * These are only a few examples of how there could have been corroboration of these citizen informants' information. There was, however, no corroboration or verification * verify information from Mr. Hood regarding cellular phone activity for the Netcom dialups and how this information was obtained; whatsoever. Police corroboration of a citizen informant's information is a key factor in determining if there is probable case to issue a warrant. See Salas, Angulo-Lopez, and Gagnon, supra. Here, where there was no corroboration, the search warrant is facially invalid, and all items seized from the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina and the fruits thereof must be suppressed. E. THE WARRANT AND RESULTING SEARCH ARE INVALID BECAUSE THE SEARCH WARRANT WAS ISSUED BY A JUDICIAL OFFICER WHOSE NEUTRALITY HAD BEEN COMPROMISED The warrant requirement of the Fourth Amendment is the means through which law enforcement officials are compelled to submit their assertions concerning the existence of probable cause to judicial scrutiny. Coolidge v. New Hampshire, 403 U.S. 443 (1971). As the majority of the Supreme Court observed in Johnson v. United States, 333 U.S. 10 (1948): "Any assumption that evidence sufficient to support a Magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the amendment to a nullity and leave the people's homes secure only in the discretion of police officers." The intention of the Fourth Amendment is thus fulfilled only when the Magistrate to whom the application is made acts with objectivity and independent judgement. In Lo-Ji Sales v. New York (442 U.S. 319, 1979), based on two films that a detective and a Town Justice had watched, the Town Justice issued an warrant to search an "adult" bookstore for copies of those films as well as other "similar" films. However, the warrant was not filled out with particularity until after the search was over. In addition, the Town Justice was a member, if not the leader, of the search party. The Supreme Court held that the "Town Justice did not manifest that neutrality and detachment demanded of a judicial officer." Id. at 326. Where it reasonably appears that the action of the judicial officer bespeaks a desire to assist law enforcement officials rather than scrutinize them, the constitutional requirement of independent judicial scrutiny is undermined. While Lo-Ji Sales is an extreme example of a judicial officer lacking neutrality, in the instant case, Judge Dixon also demonstrated an over-eagerness to assist the law enforcement officials. It appears that Judge Dixon's issuance of a search warrant which did not authorize the search of any particular house or apartment, after having been specifically informed by government agents that they in fact were not sure which apartment in which the person they were looking for was located, was done to assist the law enforcement rather than scrutinize it. While Judge Dixon did not actually participate in the search on site, he acted as an integral part by his willingness to authorize a blank search warrant. In addition, Judge Dixon authorized a search warrant based on an affidavit that was for a "trap and trace device," not a search warrant (See Affidavit in support of the Search Warrant, p. 1, at Exhibit A). This glaring and uncorrected error suggests that Judge Dixon did not read the affidavit with the care required of a neutral and detached magistrate. For the above reasons, the search which ensued cannot be constitutionally sustained. F. THE WARRANT AND RESULTING SEARCH ARE INVALID FOR FAILURE TO FOLLOW THE PROCEDURE LAID OUT IN RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE Rule 41 of the Federal Rules of Criminal Procedure governs the issuance, the content, and manner of execution of federal search warrants. Subparagraph (c)(2) thereof addresses the issuance of search warrants based on oral testimony communicated to a Magistrate by telephone. The rule also prescribes the manner in which law enforcement officers seeking authorization to conduct a search through telephone communication with a magistrate must proceed, and the manner in which the evidence upon which such authority is granted must be preserved. The rule permits a record of the evidence presented to the magistrate by telephone to be created by means of either an audio recording, a stenographic transcript, or verbatim handwritten transcript. The purpose of these requirements is obviously to provide a factual basis of the record upon which the Magistrate's judgment is based. In addition, when telephonically issuing a search warrant, the magistrate must place the caller under oath. Having asserted at 9:00 p.m. in a written affidavit that the apartment to be searched is number 107 in building 4640, there could be no more important piece of information at 2:30 a.m. the following morning than the fact that a different apartment within another building was the apartment to be searched. Despite the importance of this information, no effort was made by government agents to supplement the affidavit with any additional information. The record in the court file in this case contains no information which tends to explain how government agents came to conclude that Mr. Mitnick's apartment should be searched; whether that information was conveyed to a Magistrate; whether any official authority to search Mr. Mitnick's apartment was actually given; and if so, the factual basis upon which such judgment rested. Moreover, if information was in fact conveyed to the Magistrate during the early morning hours of February 15, 1995, there is no evidence whatsoever that the caller was placed under oath at any time proximate to the telephone conversation. In U.S. v. Stefanson (648 F.2d 1231, 9th Cir. 1981), the Court held that the violation of Rule 41 was merely technical because the magistrate had recorded the information, just not the taking of the oath (which was given, according to testimony). Here, not only does the record fail to establish a recording of the additional testimony, but it also fails to document whether that testimony was given under oath in the manner prescribed by the Constitution. When a violation of Rule 41 (c) is not merely technical, it is fundamental to the validity of the warrant. Mr. Mitnick is therefore entitled to suppression of all evidence seized from his apartment and the fruits thereof. G. THE WARRANT IS LACKING IN SUFFICIENT SPECIFICITY, THEREFORE REQUIRING THE SUPPRESSION OF CERTAIN ITEMS SEIZED The constitutional mandate of particularity in the description of the place to be searched is aimed primarily at protecting the privacy interest of citizens against the unfocused discretion of law enforcement officers. Andresen v. Maryland, 427 U.S. 463 (1976). "To determine whether a warrant lacks specificity, we must examine both the warrant's particularity and it's breadth." U.S. v. Kow, 58, F.3d 423, 426 (9th Cir. 1995) citing In re Grand Jury Subpoenas, 926 F.2d 847, 857 (9th Cir. 1991). 1. A Warrant Must Describe with Particularity the Items to be Searched and Seized. In Kow, HK Video was suspected of tax evasion, tax fraud and corporate skimming. Pursuant to a warrant issued by a magistrate judge, FBI Agents "seized essentially all of the business records, computer hardware and software, files, ledgers, and invoices " Id. at 425. The warrant basically described every document and item present in HK Video. The Court held that "by failing to describe with any particularity the items to be seized, the warrant is indistinguishable from the general warrants repeatedly held by this court to be unconstitutional." Id. at 427. The Ninth Circuit Court of Appeals distinguished Kow in U.S. v. Lacy (119 F.3d 742, 9th Cir. 1997). In Lacy, the Court upheld the seizure of an entire computer system because the affidavit in Lacy "established probable cause to believe Lacy's entire comp uter system was 'likely to evidence criminal activity'" Id. at 746 (emphasis added). However, the Court goes to explain that while in Kow there were no limits on the seizure, the Lacy warrant "contained objective limits to help officers determine which items they could seize -- allowing seizure of only documents linked to BAMSE [a computer bulletin board system] for example." Id. Here, there were no objective limitations placed on the search relating to the seizure of the any computer and computer software. The search warrant directed the seizure of "computers and any software contained therein" and "Computer Software, computer chips, computer circuit boards, computer chip programmers or 'E-Prom burners'" without any limitation to criminal or fraudulent activity. Because of this lack of particularity, many things were seized that were personal in nature that had no relation whatsoever to alleged criminal activity. "Generic classifications in a warrant are acceptable only when a more precise description is not possible." Kow at 427, quoting U.S. v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982). As in Kow, the government could have made more particular listings of what type of computer software, for example, was related to the alleged criminal activity. Since they did not, the categories "computers and any software contained therein" and "Computer Software, computer chips, comput er circuit boards, computer chip programmers or 'E-Prom burners'" should be excised from the warrant, and any items seized in these categories suppressed for lack of particularity. 2. The Scope of the Search Authorized by the Warrant was Overbroad. In Kow, the Court held that "despite its length and complexity, [Special Agent] Gordon's affidavit did not establish the probable cause required to justify the widespread seizure of documents authorized in this case." Kow at 427. Widespread seizure of d ocuments is allowed when the affidavit establishes that the business was permeated with fraud. In Kow, this was not the case. In fact, the affiant himself stated that "HK Video 'is a legitimate business'" Id. at 428, admitting that not all activities, and therefore, documents, will be proof of criminal activity. In In re Grand Jury Investigation Concerning Solid State Devices, Inc. et al., v. U.S., (130 F.3d 853 (9th Cir. 1997), companies who supplied semiconductors to the government petitioned for the return of property that was seized in an investigation of alleged fraud. The Court found invalid a warrant that authorized a broad seizure of documents and data, yet made no reference to any illegal acts or statutes that had been allegedly violated. The Court held that the "warrants executed against [the companies] were exceptionally broad in scope" (Id. at 856) and that the affidavit only supplied probable cause for a more limited search. Therefore, the Court held that the search had been illegal and ordered the seized property returned to the companies. Here, the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments was overly broad in that there were items listed and seized that had no basis of probable cause from the supporting affidavit. In particular, two categories of items listed are never mentioned in the supporting affidavit as having any nexus to alleged criminal activity: "...personal electronic or hand written organizers or phone directories, scheduling calendars" and ""Records reflecting the rental of any safety deposit box or mail box, and any keys to safety deposit or mail boxes." It follows that since these items are never mentioned in the affidavit, there was no probable case to search and seize them. In addition, there was never any allegation in the affidavit of generalized criminal activity occurring in the apartment, allowing the seizure of all items found. By listing these two categories, the warrant exceeds the scope of probable cause and is thus overbroad. Therefore, the categories "...personal electronic or hand written organizers or phone directories, scheduling calendars" and "Records reflecting the rental of any safety deposit box or mail box, and any keys to safety deposit or mail boxes" should be excised from the warrant and any items seized in these categories suppressed as there was no probable cause to support their seizure. H. THE LEON EXCEPTION TO THE EXCLUSIONARY RULE DOES NOT APPLY IN THE ABSENCE OF GOOD FAITH As this was a warrantless search, Leon, of course, does not apply. Assuming, arguendo, that the court finds the search warrant issued after the search of apartment applies, then Leon does not apply in the absence of good faith. The holding in United States v. Leon, 478 U.S. 897 (1984) modifies the exclusionary rule so as not bar evidence obtained by police officers acting in reasonable reliance on a search warrant. To satisfy the good faith standard, officers must have "objectively reasonable grounds" for believing that the warrant was properly issued. Two exceptions to the holding in Leon however are: 1. If the Magistrate has "wholly abandoned his judicial role" a subsequent search would be outside the good faith exception; and 2. If a warrant is so facially deficient that the officer cannot reasonable presume it to be valid, no claim of good faith will preserve it. The particularity exception to Leon applies to a warrant which is so "facially deficient" that an officer cannot presume it to be valid. "As a rule, if a warrant is facially defective for want of particularity, an objectively reasonable belief in its val idity will be impossible." U.S. v. Towne 997 F.2d 537 (9th Cir. 1993). As discussed above, the warrant in this case was issued "in blank" containing no address of physical description of the premises to be searched. No professional law enforcement officer could reasonably presume such a deficient warrant to be valid, particularly where as here, the officers executing the warrant procured its issuance in the manner which rendered it defective. IV. CONCLUSION For all the reasons stated above, there was no probable cause for the search on February 15, 1995 of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina. Therefore, all of the evidence obtained in the illegal search, and the fruits thereof, should be suppressed by the Court. DATED: March ___, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________ DONALD C. RANDOLPH Attorneys for Defendant KEVIN DAVID MITNICK DECLARATION OF KEVIN DAVID MITNICK I, Kevin David Mitnick, hereby state and declare as follows: 1. I am the defendant in United States v. Kevin Mitnick, et al., CR 96-881-MRP. Pursuant to Simmons v. United States, 390 U.S. 377 (1968), I make this declaration only in support of my motion to suppress results of the search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina and for no other purpose. 2. On or about February 7, 1995, I moved into 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina where I was residing on February 15, 1995. 3. On February 15, 1995, law enforcement officials conducted a nonconsensual search of 4550 Tournament Drive, Apartment 202, Players Club Apartments, Raleigh, North Carolina. 4. On February 15, 1995, I arrived home some time after 1:00 a.m. When I heard a knock on my door around 1:20 a.m., I asked who it was. The person identified himself as "FBI." 5. At around 1:30 a.m., I opened the door a crack to speak with the agent. There were about five agents standing outside my door. I told them they could not come inside without a search warrant. 6. I tried to close the door, but an agent, whom I later learned was Agent Burns, blocked the door with his foot. I asked them to leave and they forced their way into my apartment. 7. Once the agents were in my apartment, they immediately began looking around the apartment, even though I kept requesting them to leave since they did not have a search warrant. 8. After talking with my attorney, Agent Burns left the apartment to obtain a search warrant. He was gone about 30 to 45 minutes. When he returned, he showed me a warrant that had "Kevin Mitnick" "Raleigh, North Carolina" typed in the upper corner. Handwritten in were the words "4550 Player's Apartment, Apartment 202." 9. While he was gone, the other agents continued search my entire apartment. This included looking under the mattress and through a closet that was originally closed. One of them found a wallet inside a pocket of the leather jacket which had been buttoned shut. The agents looked through the contents of the wallet. 10. I vigorously objected to the agents entering and searching my apartment. I did not consent to the search of my person. I declare under penalty of perjury that the foregoing is true and correct. Executed this ___ day of March, 1999, at Los Angeles, California. DATED: March ___, 1999 ________________________ KEVIN DAVID MITNICK 1 Unless otherwise indicated, all facts are set forth in the affidavit in support of the search warrant (Exhibit A) and in the Declaration of Kevin David Mitnick (at pages 33-35). 2 As discussed herein, the search warrant was ultimately executed on Apartment 202 at 4550 Tournament Drive. -ii- 18