This is what our lawyer said in response to their motion. Comments
n  ---Keith Henson
CHRISTOPHER ASHWORTH, A Member of
GARFIELD, TEPPER, ASHWORTH & EPSTEIN
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.,
RAYMOND CARRILLO, et al.,
Plaintiffs oppose the motion of defendants to dismiss in the
Defendants motion is premised upon two discrete but interrelated
concepts: first, the defendants assert that the mere existence of a
Electronic Communication Privacy Act (hereinafter "Act"). Second, the
Act, then the activities of the defendants are saved by their "good faith
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
mposed 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
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 . . . ."
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
forth in Section 2703(d).
The plaintiffs do not wish to leave the court dangling in suspense
ssuing 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 . . .
s 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
following paragraphs, the warrant was so deficient on its face as to not
authorize to seize electronic communication of any kind.
As the defendant correctly noted, the ordering paragraph of the
"All electronic storage devices capable of storing electronic data,
ncluding magnetic tapes, disc, (floppy or hard), and the complete
of the computers. (See Exhibit A - Search Warrant No. 1, property to be
A perusal of Exhibit "A" and its translation attached as Exhibit "B" will
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
nseparable 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
nformation 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
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
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
could be seized and was itself sufficient to debunk any "good faith'
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
executing officer simply could not reasonably rely on [this] facially
With or without the attached affidavits, the search warrant as issued
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,.
[footnote--Occasionally, all of the books and records of an entity are
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
n 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
that the warrant he was executing was valid.
Defendants' motion fails on both grounds urged. First, the
of the warrant in the first instance required by Section 2703(d) were
complied with. Secondly, the defendants have failed to demonstrate --
DATED : April 11, 1990
CHRISTOPHER ASHWORTH, a Member of
GARFIELD, TEPPER, ASHWORTH, & EPSTEIN
A Professional Corporation
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
the course of the company's business affairs to record data and
nformation pertaining to existing preservations being maintained by
Alcor Foundation, as well as information relating to the Dora Kent death
and subsequent preservation."
of ALcor to notice seven computers.]
I, Allen E. Kunzman, presently employed as a edputy coroner
nvestigator 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
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
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
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
Street address. This body and seven heads are being stored in a frozen
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
Department's Registrar`s office and determine if any permits had been
ssued 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.