This is what our lawyer said in response to their motion. Comments in [] ---Keith Henson CHRISTOPHER ASHWORTH, A Member of GARFIELD, TEPPER, ASHWORTH & EPSTEIN 1925 Century Part East, Suite 1250 Los Angeles, California 90067 Telephone: (213) 277-1981 Attorneys For Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Case NO. SA CV90-021 JSL (RwRx) H. KEITH HENSON, et al., Plaintiffs, v. RAYMOND CARRILLO, et al., Defendants. Plaintiffs oppose the motion of defendants to dismiss in the following premises: 1. _Introduction_ Defendants motion is premised upon two discrete but interrelated concepts: first, the defendants assert that the mere existence of a search warrant that purports to authorize the seizure of " all electronic storage devices [etc.] . . . " is sufficient to avoid liability under the Electronic Communication Privacy Act (hereinafter "Act"). Second, the defendants argue that even it there is a "technical" violation of the Act, then the activities of the defendants are saved by their "good faith reliance" upon the warrant. As will be pointed out in two brief succeeding sections, both of these premises are erroneous. In general, the " warrant issued" defense fails because the defendants have brought forth no evidence as required by 18 U.S.C. Section 2703(d) to defensively demonstrate the propriety of the issuance of the warrant in the first place under the limitation imposed by the Act. With regard to the "good faith" argument, the short answer is that the warrant is defective upon its face. 2. _Non-compliance With The Act_ 18 U.S.C. Section 2703(d) declares in material part as follows: "(d) Requirements for court order. A court order for disclosure . . . may be issued by any court that is a court of competent jurisdiction . . . and shall issue only if the governmental entity shows that there is reason to believe the contents of a wire or electronic communication . . . are relevant to a legitimate law enforcement inquiry . . . ." In order to claim the protection of this section, the "governmental entity" would have to demonstrate to _this_ court that it had supplied the issuing court with evidentiary materials to permit the issuing court to find "that there is reason to believe that the contents of a wire or electronic communication . . . are relevant to a legitimate law enforcement inquiry." The defendants here have brought forth no evidence to show that the issuing court was favored with any evidentiary materials which would permit it to draw the statutorily required conclusion set forth in Section 2703(d). The plaintiffs do not wish to leave the court dangling in suspense wondering there was ever any evidentiary materials supplied to the issuing court. While it is clear that it is not the plaintiffs' burden to do so, the evidentiary materials supplied to the issuing court in connection with the issuance of the warrant is attached hereto as Exhibit "A". Plaintiffs' instincts in this matter are not entirely charitable. The evidentiary material are required for the next section which scotches the defendants "good faith" theory. 3. _The Defendants Have Failed To Make A "Good Faith" Showing._ 18 U.S.C. Section 2707(d) declares as follows: "A good faith reliance on -- (1) a court warrant or order . . . is a complete defense to any civil or criminal action brought under this chapter . . . ." Defendants suggest to us that the measurement of the "good faith" of the officers and others executing the warrant should be interpreted under the qualified immunity doctrine. That level of sophistication need not be reached in this case. As will be succinctly demonstrated in the following paragraphs, the warrant was so deficient on its face as to not give an executing officer _any_ possibility of believing that he was authorize to seize electronic communication of any kind. As the defendant correctly noted, the ordering paragraph of the search warrant contained, in paragraph 1 thereof, the following property description: "All electronic storage devices capable of storing electronic data, including magnetic tapes, disc, (floppy or hard), and the complete hardware necessary to retrieve electronic data including CPU (Central Processing Unit), CRT (viewing screen), disk or tape drive(s), printer, software and service manuals for operation of the said computer, together with all hand written notes or printed material describing the operation of the computers. (See Exhibit A - Search Warrant No. 1, property to be seized #1). A perusal of Exhibit "A" and its translation attached as Exhibit "B" will demonstrate to the satisfaction of anyone who can read that the issuing court was not favored with a single scrap of testimony to the effect that (a) the premises to be searched contained any computer or electronic media materials and (b) that there was any reason to believe the contents of a wire or electronic communication were relevant to a legitimate law enforcement inquiry as required by Section 2703(d). It is well settled that a search warrant issuing from a court is inseparable from and must be read in connection with the underlying affidavits which are perforce attached to it. See _Unites States vs. Stanert, 762 f.2d 775, 778 (9th Cir. 1858). "A search warrant, to be valid, must be supported by an affidavit establishing probable cause. In reviewing the validity of a search warrant, a court is limited to the information contained within the four corners of the underlying affidavit." In our case, any executing officer reading the warrant and attached affidavits would discover that there was no evidence presented to the court to justify taking any electronic devices. Moreover, all persons executing search warrant are charged with the knowledge that the things to be seized must be described with reasonable particularly. Here, the warrant authorized the seizure of electronic media that was "capable of storing" certain kinds of data! The warrant did not even require that the relevant data be in the electronic media. This is analogous to authorizing the seizure of "all books shelves capable of containing records relevant to the commission of a crime." [Or all mail in a post office] Warrants that merely describe broad classes of documents or other things without specific descriptions of items to be seized do not provide objective standards by which a executing officer could determine what could be seized and was itself sufficient to debunk any "good faith' claim. The Ninth Circuit has recently held that a search warrant which was comparably overbroad to the one under consideration here (a) obliterated the legality of the search and (b) completely scotched the possibility that he officers had acted in good faith. See _United States vs. Stubbs_, 873 F.2d 210 (9th Cir. 1989). The _Stubbs_ court noted that where the description of the things to be seized was so general "the executing officer simply could not reasonably rely on [this] facially deficient warrant." With or without the attached affidavits, the search warrant as issued declared open season on all of the books and record of whoever might have been found at 12327 Doherty Street in Riverside. Aside from some truly unusual cases, the courts are uniform in condemning these types of unlimited searches. See _Stubbs_, supra; _Barrows vs. Superior Court of San Bernadino_, 13 Cal. App. 3d 238, 118 Cal. Rptr. 166, 173 (1974) and _Aday vs. Superior Court of Alameda_, 55 Cal. App. 2d 789, 13 Cal. Rptr,. 415 (1961). [footnote--Occasionally, all of the books and records of an entity are subject to seizure where there is evidence before the issuing court that the entity is engaged in comprehensive wrongdoing with relatively few opportunities for noncriminal activities. See, e.g., _United States vs. Accardo_, 479 f.2d 1477 (11th Cir. 1985). Even in the case just cited, the circuit court remanded the case back to the district court for further determination of whether the executing officer had indeed acted in good faith.] Whether judged in terms of its underlying affidavits (which contain not one syllable regarding electronic storage devices) or upon the face of the ordering paragraph (which authorizes the seizure of everything electronic that was not nailed down) no executing officer with a rudimentary training in law enforcement could have believe in good faith that the warrant he was executing was valid. 4. _Conclusion_ Defendants' motion fails on both grounds urged. First, the defendants failed to show that the conditions precedent to the issuance of the warrant in the first instance required by Section 2703(d) were complied with. Secondly, the defendants have failed to demonstrate -- particularly as a matter of law -- that the seizure of the electronic storage devices at issue here were the result of good faith. The motion should be denied and the defendants ordered to answer. DATED : April 11, 1990 CHRISTOPHER ASHWORTH, a Member of GARFIELD, TEPPER, ASHWORTH, & EPSTEIN A Professional Corporation {signed} CHRISTOPHER ASHWORTH Attorneys for Plaintiffs [Actually, there was an affidavit in support of the search warrant used to take the computers, but because it was filed much later, both lawyers seem to have missed it. The relevant paragraph reads: "During the service of this second search warrant, it was discovered that there were several personal/business computer located on the premises. It is you affiant's belief that these computers were used in the course of the company's business affairs to record data and information pertaining to existing preservations being maintained by Alcor Foundation, as well as information relating to the Dora Kent death and subsequent preservation." It is possible to wonder why it took them well into the second search of ALcor to notice seven computers.] Attachment "A" Affiant's Declaration I, Allen E. Kunzman, presently employed as a edputy coroner investigator with Riverside County was assigned to assists deputy coroner Rick Bogan who was investigating the unreported death of Dora Kent. Deputy Bogan was advised of Dora Kent's death on December 15, 1987, at 1650 hours, by a Joe Klockgether, a representative of Renaker-Klockgether Mortuary. Mr. Klockgether had attempted to file a death certificate with the Riverside County Health Department, and due to information that had been listed on the death certificate, required the death of Dora Kent to be reported to the Riverside County coroner's office. The death had reported occurred at 0027 hours on December 11, 1987 at 12327 Doherty Street, City and County of Riverside, a place of business identified as Alcor Life Extension Foundation. A check of our records, in fat, confirm that the death had not been reported. On December 16, 1987, myself and deputy Bogan made contact with Michael G. Federowic\ aka Michael Darwyn, President of Alcor, and a Jerry Leaf, Vice President of Alcor. Both being present upon our arrival at the 12327 Doherty Street address. Michael Federowicz and Jerry Leaf explained that Dora Kent had been brought to the 12327 Doherty Street address on December 9, 1987, by Michael Federowicz and Saul Kent, Dora Kent`s son. That she remained at the 12327 Doherty Street address and that she expired at 0027 hours on December 11, 1987. Federowicz and Leaf both stated, "they, nor any other representative from the Alcor Life Extension Foundation reported Dora Kent's death to the Riverside County coroner's office." While at the 12327 Doherty Street address, Jerry Leaf and Michael Federowicz reported to myself and deputy Bogan that they are currently storing the heads of seven other decedents and one entire body at the 12327 Doherty Street address. This body and seven heads are being stored in a frozen state in liquid nitrogen. Federowicz and Leaf were asked for any licenses and permits which would authorize them to maintain and store the body and body parts that they had reported to us as being at the 12327 Doherty Street address. Federowicz nor Leaf could produce any licenses or permits for the storage of the aforementioned body or heads. Contact was subsequently made with Don Cavallo of the Riverside County Health Department's Registrar`s office and determine if any permits had been issued to the Alcor Life Extension Foundation for the purpose of storing bodies and/or body parts. As of January 6, 1987, per Daon Cavallo of the Riverside County Health Department, the County Registrar's office has never issued any permits to Alcor for storing bodies or body parts. Therefore, I request the issuance of a warrant to obtain evidence to show that violations of Government Code Section 27491 and Health and Safety Code Section 10377 have occurred and are currently occurring at the 12327 Doherty Street location.