TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on the government's Amended Motions for Delayed Service of Notice in the above-captioned cases.
On June 18, 2014, the undersigned Magistrate Judge entered an order and issued a warrant in Case No. 14-mj-8116 ("Warrant 1"), allowing [REDACTED] to obtain precise location data concerning Target Telephone 1 for a period of thirty days. The order authorized the government to delay notification for 30 days following the authorized monitoring period. [REDACTED] executed Warrant 1 on June 19, 2014 and ceased monitoring on July 17, 2014.
Similarly, the Court entered an order and issued a warrant in Case No. 14-mj-8219 on October 29, 2014 ("Warrant 2"), allowing [REDACTED] to obtain precise location data concerning Target Telephone 2 for a period of thirty days. The order authorized the government to delay notification for 30 days following the authorized monitoring period. [REDACTED] executed Warrant 2 on October 30, 2014 and ceased monitoring on November 28, 2014.
The government states that the criminal investigation relative to these search warrants is ongoing and involves a continuing investigation into the distribution of controlled substances by the owner of the target telephones and other persons. The government contends there is reasonable cause to believe that immediate service of notice of the execution of these warrants to the owners of the property would have an adverse result, that is, "the serious jeopardizing of the ongoing criminal investigation[s] in th[ese] matter[s], as defined and provided by Title 18, United States Code, Sections 3103a(b) and (c) and 2705(a)(2)(E)."
The government acknowledges that its authority to delay serving notice of Warrant 1 to the owner of the property expired on August 16, 2014 (or, in its words, "a motion for delayed service of notice of Warrant 1 was due to be filed on August 17, 2014").
Similarly, the government acknowledges that a motion for delayed service of notice of Warrant 2 was due to be filed on December 27, 2014.
In each case, the First Motion for Delayed Service notes the date on which that motion was due and then states: "Due to a calendaring oversight, the United States failed to make a timely request for an order delaying service of notice."
After reviewing the motions, the Court contacted the responsible Assistant United States Attorney and asked him to provide legal authority whereby the Court could excuse the missed deadline due to calendaring oversight and grant the motions. After consulting with the Court, the government moved to withdraw the motions for delayed service of notice. The Court granted the motions to withdraw.
The Court also granted the government's request for a January 23, 2015 deadline to refile its motions for delayed notice and to provide legal authority and argument which would excuse the delinquent filings. The government timely filed the Amended Motions and accompanying Supplemental Authorities in support of its "out-of-time ex parte request to postpone service."
To date, the government has provided no notice to the owners of the property that Warrants 1 and 2 have been executed. The government requests that notice of the execution of these warrants be delayed for a period of ninety days, measured from January 7, 2015. The government states that, in the event the ongoing investigation of this matter continues for longer than 90 days, it will submit further requests for orders delaying notice of execution of these warrants in accordance with the provisions of 18 U.S.C. § 3103a(c).
The government summarizes its argument as follows. Had it complied with the statutory deadlines in these cases, its motions would have shown good cause to justify a 90-day delay in its statutory obligation to provide notice because on each of the missed deadlines (August 17, 2014, November 14, 2014, and December 27, 2014) ("the material dates"), the investigation was active and progressing, and notice to the subscriber would have jeopardized the ongoing investigation. Consequently, the government argues that this Court should find the government's error constituted excusable neglect and should grant the Amended Motions.
The government relies on Federal Rule of Criminal Procedure 45(b)(1) as the basis for its argument. Rule 45(b)(1) discusses a court's authority to grant belated requests for extensions of time based on excusable neglect. The rule states as follows:
The U.S. Supreme Court discussed the term "excusable neglect" at length in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership.
Federal Rule of Criminal Procedure 41(f) discusses rules relating to the execution and return of authorized search warrants. Upon the government's request, Rule 41(f)(3) permits a magistrate judge to "delay any notice required by this rule if the delay is authorized by statute."
Section 3103a authorizes a magistrate judge to issue a warrant to "search and seize any property that constitutes evidence of a criminal offense in violation of the laws of the United States."
For good cause shown, Section 3103a(c) also allows a magistrate judge to extend for up to 90 days any delay authorized under the statute. The extension is conditioned upon the government making an "updated showing of the need for further delay."
The Court examines below each "excusable neglect" factor to determine whether the government has met its burden.
The majority of the government's Supplemental Authorities brief is devoted to summarizing the investigation of [REDACTED].
According to the government's representations, these search warrants are part of a [REDACTED] investigation that began at least as early as August 5, 2013.
The government states that there have been [REDACTED] controlled purchases of [REDACTED] from [REDACTED] and his associates.
The deadline for the government to apply for an extension of the delayed notice order with respect to Warrant 2 was December 27, 2014. On [REDACTED], law enforcement made a controlled purchase of [REDACTED] from [REDACTED]. Additionally, the government asserts that the user of Target Telephone 1 was engaging in pertinent communications with [REDACTED], whose phone was being wiretapped until [REDACTED].
Based on the information the government provides in its Supplemental Authorities, it appears that at the time the applications for extension were due, the government could have shown that such extensions were warranted. In short, there would have been reasonable cause to believe that providing immediate notification of the warrants at those times might have an adverse result, namely "seriously jeopardizing an investigation."
It is readily apparent that the government's investigation was ongoing on the material dates, and that notice of the warrants on the material dates could have seriously jeopardized this ongoing criminal investigation.
The government's motion for extension as to Warrant 1 is 144 days late and as to Warrant 2 is 12 days late. Most assuredly, these delays are significant, as the government concedes.
The government argues that its significant delay "should be viewed in the context of the entire criminal investigation."
The government also bemoans the "grave effect" that immediate notification would have on the "administration of justice," noting that it might cause the two ongoing investigations to end.
Although lengthy, the fact is that the government's delay is not likely to impact the judicial proceedings (unless the Court denies the Amended Motions), but only because the government did not give notice when it was due and instead continued its investigation throughout the delay. To suggest that in analyzing this factor the Court should consider the lack of impact of the government's delay on this judicial proceeding is counterintuitive and would lead to an absurd result; that is, the government would be rewarded for failing to comply with statutory deadlines. Accordingly, the Court finds that this factor weighs against the government.
The reason for delay is perhaps the most important factor in the excusable neglect analysis.
In a case from this District, Espy v. Mformation Technologies,
Consistent with Judge Vratil's summary, in Mohankumar v. Dunn,
The Government explains its reason for the delay in this instance as follows:
This case appears to fall in line with Mohankumar and Espy, and to involve an unfortunate and excusable calendaring error by the responsible attorney's support staff. To this extent the reason for the delay would be excused under the case law in this District.
However, the delay in this case was totally within the control of the government, which raises another significant element for the Court to consider. Moreover, this was not an isolated instance of the government failing to timely file a motion for extension of delay notice. The Court's independent research
In the most egregious case, the length of time between expiration of the delay order and the Government's motion to extend delayed service of notice was approximately
In one especially notable case which involved nine delay orders, the fourth motion (dated October 22, 2013) included the government's familiar reference to a "calendaring oversight" as its reason for missing the deadline.
The numerous delinquent filings identified through very limited investigation indicate a lax attitude on the part of the government with regard to the clear statutory delayed notice requirements. The government's record in this regard is especially troubling in that in none of the 18 identified delinquencies does the government's motion represent that it provided the notice required under 18 U.S.C. § 2703 once its authority to delay such notice had expired. In other words, the government repeatedly has disregarded the deadlines for seeking extensions while turning a blind eye to the subject's right to notice.
The missed deadline in this case appears to have resulted from a clerical error. Yet when a situation develops where missed deadlines are not a rare event but rather are something of a regular occurrence, clearly there is a much greater systemic problem at issue. Stated another way, when deadlines such as these repeatedly are overlooked and missed, it suggests an indifference and willful disregard by the government toward the statutory notice requirements.
This factor weighs against the government.
The Court does not question the motives or intent of the Assistant U.S. Attorney who filed the motions in these cases. The Court accepts the attorney's representation that he did not realize the motions had been filed out of time. When the tardy filings were brought to his attention, he promptly looked into the situation, requested permission to withdraw the motions, and then briefed the late filing issue. The assigned attorney has been totally candid with the Court. The Court believes that he acted in good faith and has attempted to resolve the issue the best way possible.
This factor weighs in favor of the government.
The prevailing view among federal courts is that the Fourth Amendment does not invalidate the delayed notice aspect of such warrants. This view, articulated in United States v. Pangburn
The USA Patriot Act, passed soon after 9/11 at the behest of the Department of Justice, contains amendments and additions to already-existing statutes. Attorney General John Ashcroft testified before the House Judiciary Committee that the proposed legislation would "provide law enforcement with the tools necessary to identify, dismantle, disrupt and punish terrorist organizations before they strike again."
It is also notable that a disproportionately high number of delayed notice applications are filed in this District. Indeed, according to the most recent statistics available, in fiscal year 2013 the District of Kansas ranked third (behind only the Southern District of California and the Southern District of Texas) in the number of such applications filed with 555, and the top four districts accounted for over a quarter of all such applications reported nation-wide.
Congressional testimony on the Act focused on physical searches of spaces or packages. One commentator states that there is no mention, in any of the discussion of Section 3103a, "that this general authority would also apply to search warrants that did not involve physical intrusions into homes, businesses, and packages . . . [and] [a]s recently as 2011, a congressional report characterized `delayed notice search warrants' as involving covert searches of homes and businesses."
The proliferation of Section 3103a warrants and extensions thereof, the lack of Fourth Amendment protection, and the types of offenses in which they are most frequently an investigatory tool all point to the increased need for vigilance on the part of the judiciary. Prosecutors frequently obtain extensions — multiple extensions — of delayed notice merely by reciting in conclusory fashion the same words, that immediate service of a notice of the execution of the warrant would "seriously jeopardize an ongoing investigation." With such a low threshold, it is "essential that an objective mind of a neutral magistrate weigh the need to invade [a person's] privacy in order to enforce the law," and "it is necessary for a § 3103a warrant to strictly comply with the requirements of that section."
The Court decides the ultimate issue of whether the government has sufficiently demonstrated excusable neglect by weighing its assessment of each of the four relevant factors. On balance, the Court concludes that the government has satisfied its burden. The Court so concludes because the government has made a clear showing of facts which establish that reasonable cause existed to grant the delay extensions on the material dates, and the government has satisfied the Court that it acted in good faith in this particular instance. That does not, however, minimize the Court's concerns with respect to the government's recurring practice of delinquently filing its motions for extensions of delayed notice, and the Court specifically rejects the government's argument as to lack of prejudice to the non-moving party and as to length of delay and its potential impact on judicial proceedings. Accordingly, the Court grants the Amended Motions for delayed notification, but with the following caveats.
The Court expects that the government will no longer miss its statutory deadlines to seek extensions of delay orders. Should exceptional circumstances arise under which the government does miss a deadline and therefore is required to file a motion out of time, any such future motion should (1) state in the title that it is being filed out of time; (2) recite the chronology of the initial delayed notice deadline and each subsequent deadline, motion and order for extension; and (3) explain the reason for the failure to meet the deadline — simply noting a calendaring error will not be sufficient — so as to satisfy the excusable neglect standard.
In addition, all future motions for extension of delay orders should state (1) the date of the original order; (2) the date on which the authorized monitoring period ended; (3) the date on which the warrant was returned; and (3) the dates of all previous motions for extension and the orders issued pursuant thereto, along with the length of the extension granted in each order.