IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA STATE OF OKLAHOMA, ex rel., ) R

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IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA STATE OF OKLAHOMA, ex rel., ) ROBERT H. MACY, DISTRICT ) ATTORNEY OF THE SEVENTH ) PROSECUTORIAL DISTRICT, ) ) Plaintiff, ) vs. ) Case No. CJ-93-6651 ) ONE (1) PIONEER CD-ROM CHANGER, ) MDL. #DRM-600-A, SER# ML 8515021; ) ONE (1) PIONEER CD-ROM CHANGER, ) MDL. #DRM-600-A, SER# ML 8515077; ) FOUR (4) SONY CD ROM DRIVES, MDL. ) #CDU 6201-20, SER#'S 810593, 808759) 808986, & 806083; TWO (2) COMPUTER ) POWER CONTROLS, NO MODEL OR SER. ) NUMBER; ONE (1) KEYBOARD NMB TEC. ) MDL. RTL01, SER# 19257111; ONE (1) ) KEYBOARD MAXI SWITCH, MDL#2186002XX) SER #19257111; ONE (1) WOODS POWER ) STRIP MDL# 417 NO SER.#; ONE (1) ) LONALITE POWER STRIP, JDL# 417 NO ) SER.#; ONE (1) BROOKS POWER STRIP ) MD#T6-6 NO SER#; ONE (1) US ) ROBOTICS MODEM, SER # ) 0002670001732718, MDL#14400; ONE ) (1) US ROBOTICS, SER # ) 0081000000002753; ONE (1) HAYES ) MODEM MDL #5100, SER#A00351003317; ) ONE (1) ROBOTICTS 2400 MDL#UNKNOWN,) SER #0033-03068608; ONE (1) HAYES ) MODEM MDL. #5100, SER#A00351003311;) ONE (1) DGI BOARD; ONE (1) MODEM ) ROBOTICS SER# 0066-16045021020891; ) ONE(1) HAYES MODEM SER#A00151003142) ONE(1) MONITOR HELM ENG. MDL # ) CM-414E, SER #038213073; ONE ) MIMMICOR MONITOR, MDL# MM1453M1, ) SER#90405186; ONE (1) COMPUTER CUP,) W/DRIVES, NO SER# OR MDL#; ONE (1) ) COMPUTER CPU W/DRIVES, NO SER# OR ) MDOL#; ) Defendants. ) BRIEF IN SUPPORT OF MOTION TO DISMISS COMES NOW, ANTHONY A. DAVIS, the owner of the above described property, and respectfully requests this Court dismiss the above entitled forfeiture action. PROPOSITION I THE PROPERTY WAS SEIZED PURSUANT TO AN UNAUTHORIZED AND WARRANTLESS SEARCH. On July 20, 1993, the Oklahoma City Police Department entered the business office of Anthony Davis at 1501 Southeast 66th Street, Oklahoma City, Oklahoma, pursuant to a search warrant (See Exhibit "A"). By the time their search ended, they had dismantled and seized a network computer system, the pieces of which are the property listed herein. However, an examination of this search warrant and the affidavit requesting the warrant indicates that there was no mention of a computer network or computer bulletin board system. There were no exigent circumstances and no legal justification for the police officers' unilateral decision to expand the scope of the search warrant beyond that which was granted by the Judge. The Fourth Amendment of the United States Constitution tells us that warrants must particularly describe the place to be searched and the person or things to be seized. The United States Supreme Court has consistently articulated the position that a search warrant prevents the seizure of one thing under a warrant describing another. "As to what is to be taken, nothing is left to the discretion of the officer". Marron v. U.S., 48 S.Ct. 74 (1927). To allow searching and seizing items beyond which is described in the warrant would allow warrants to become impermissibly general and thus violate the Fourth Amendment. See, Warden v. Hayden, 87 S.Ct. 1642 (1967), and Andresen v. Maryland, 96 S.Ct. 2737 (1976). Oklahoma case law mirrors the U.S. Supreme Court's concern for particularity in description of items to be seized. See, Tosh v. State, 736 P.2d 527 (1987), Coffey v. State, 661 P.2d 897 (1983), and Jones v. State, 632 P.2d 1249 (1981). Case law indicates that warrantless searches are per se unreasonable, subject only to a few specifically established and well delineated exceptions. Coolidge v. New Hampshire, 91 S.Ct. 2022 (1971). If the State is to rely on one of the specific well delineated exceptions allowing warrantless search and seizure, it is the State's burden to show the Court that such reliance is lawful. Under certain fact situations, such well delineated exceptions will not justify a warrantless search. This exception to a search outside of a warrant is disallowed in situations like the case at bar, as described in Coolidge: But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as 'per se unreasonable' in the absence of 'exigent circumstances'. At page 2040. But to extend the scope of such an intrusion to the seizure of objects -- not contraband or stolen or dangerous in themselves -- which the police know in advance they will find in plain view and intend to seize, will fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure. At page 2041. Testimony at the preliminary hearing from the affiant, Sergeant Anthony Gracey, revealed that Gracey was specifically told by Anthony Davis several months before the search in question that Davis owned and operated a computer network where people could dial in and access the same type of discs Davis was selling to Sergeant Gracey. At the preliminary hearing, Gracey testified that after he bought an adult CD from Davis in June 1993, that the following conversation occurred: After I purchased the CD, we were setting there talking. After I had given him the money, I remained around for a while and he (Tony Davis) said 'you know I have the same type of CDs available -- or same type of programs available on the network that I have on that disc.' He said, 'come on over here and I'll show you the computer -- you know, my computer system, or I'll show you the CD.' (Preliminary Hearing Transcript at P.29). After revealing this information, Gracey was asked the following question: Q. Now of course networks mean a lot of different things to different people. Let me make sure I understand...You said that you took that to mean that he had a network where people could access or view these matters other than just himself. Was that the way you took it? A. (Gracey) Yes, sir. (Preliminary Hearing Transcript at P.29). Gracey later testified that Davis bragged to Gracey that he had the largest network in the state. When Gracey was asked what this meant, the following exchange occurred: Q. When he said he had the largest network in the state did you take that to mean that a lot of people could call in and look at whatever CDs he had? A. (Gracey) Yeah. (Preliminary Hearing Transcript at P.31). Despite the specific knowledge that Mr. Davis had a computer network which allowed persons to view allegedly pornographic disks like Sgt. Gracey purchased, Gracey made no mention of this fact to the Judge in his affidavit for search warrant. Sergeant Mark Wenthold of the Oklahoma City Police Department Vice Division was also on the scene and actively involved in the search of Anthony Davis' business. Sergeant Wenthold explained at the preliminary hearing that he too had knowledge of Sergeant Gracey's conversation with Anthony Davis concerning this computer network that was on the premises. In describing the search Wenthold stated: (We) went in one room and there was a large computer system set up, which we had discussed that he had a network system that he had talked about with Tony (Gracey) when he was making the buys. Tony (Gracey) had never seen the system. He had talked about it, so it really didn't surprise us when we found it, but of course, we couldn't describe this system in a warrant when we hadn't seen it yet. [Emphasis added.] (Preliminary Hearing Transcript at pp.65-66). The judge who issued the search warrant in question was not told of a computer network on the premises which might be used to transmit electronically those disks which the police had claimed were pornographic. A reading of the affidavit and the search warrant itself makes it clear that the police were only authorized to search for evidence relating to the crime of selling allegedly pornographic CD disks. The computer equipment seized and listed herein in no way related to the crimes of possession or sale of pornographic CD disks upon which the warrant was issued. PROPOSITION II ITEMS TAKEN PURSUANT TO AN ILLEGAL SEARCH AND SEIZURE CANNOT BE USED IN A CIVIL FORFEITURE PROCEEDING. Oklahoma law recognizes the principal that items which would be inadmissible in a criminal court pursuant to the exclusionary rule are likewise inadmissible in civil proceedings. The Oklahoma Supreme Court in the case of Turner v. City of Lawton, 733 P.2d, 375 (Okla. 1986), held as follows: Article II, Section 30 (of the Oklahoma Constitution), must be strictly construed, and unless it can clearly be shown that the officers making the search complied with the legal prerequisites necessary to constitute a lawful search, the evidence seized by an unreasonable search must be suppressed. The absolute security granted by the Oklahoma Constitution Article II, Section 30, against unlawful search and seizure exists without reference to the guilt or innocence of the person whose property is searched and without consideration of whether the proceeding is civil or criminal in nature. Article II, Section 30 of the Oklahoma Constitution is modeled after and precisely parallels the language in the Fourth Amendment of the United States Constitution. It states: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized. Although the Turner case did not involve a civil forfeiture proceeding, the holding in Turner indicates that illegally seized items are inadmissible in all civil proceedings. Case law throughout the United States supports the holding reached by Oklahoma's courts in the Turner case. Research by this attorney found seventeen states which reached the same conclusion as the reasoning in the Turner case. (See Pitts v. State of Georgia, 428 S.E.2d 650 (1993), Richardson v. $4,543.00 United States Currency, 814 P.2d 952 (Id. 1991), Eads v. Hill, 563 N.E.2d, 625 (In., 1990), Illinois v. 1968 Cadillac Automobile, 281 N.E.2d, 776 (1972), Parish of Jefferson v. Bayou Landing Limited, Inc., 350 So.2d 158 (La., 1977), State of Maine vs. One Uzi Semi-automatic 9mm Gun, 589 A.2d 31 (1991), State of Missouri v. Goth, 682 S.W.2d 68 (1984), State of Nebraska v. One 1987 Toyota Pickup, 447 N.W.2d 243 (1989), State of New Jersey v. Jones, 438 A.2d 581 (1981), State of New Hampshire v. Young, 536 A.2d 1270, 581 N.E.2d 1104 (Ohio), City of Portland v. $4,345.00 in U.S. Currency, 845 P.2d 1301 (1993), Leogrande v. State Liquor Authority, 268 N.Y.S.2d 433 (N.Y. 1966), $2,067.00 in U.S. Currency v. State of Texas, 745 S.W.2d 109 (1988), Davis v. State of Utah, 813 P.2d 1178 (1991), Franklin v. Klundt, 746 P.2d 1228 (Wa., 1987), and State of Wyoming vs. $11,346.00 in United States Currency, 777 P.2d 65 (1989)). Iowa and Tennessee were the only two states whose case law seemed to differ in any way from the Turner case. The United States Supreme Court dealt with the issue of items seized in violation of the Fourth Amendment and whether such items were admissible in civil forfeiture proceedings in the case of One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246 14 L.Ed. 2d 170 (1965). The Court held that the Fourth Amendment exclusionary rule applies not only to criminal proceedings, but also to those forfeiture proceedings which are quasi criminal in character. The Court found that a forfeiture proceeding is quasi criminal in nature if it intends to impose a penalty on the individual for violation of the criminal law. The forfeiture statute used by the State, 21 O.S. 1040.54 appears almost immediately after 21 O.S. 1040.51, the criminal trafficking statute with which Anthony Davis is charged. The wording of the forfeiture statute indicates that it is predicated on a criminal charge of trafficking. The state of Washington considered whether one of their forfeiture statutes was quasi criminal in the case of Deeter v. Smith, 721 P.2d 519 (1986). In Deeter, it was pointed out that the Washington statute concerning forfeiture is in the same title and section as the punishment statutes for drug violations. Due to the location and nature of the forfeiture statute, the court concluded that the forfeiture proceeding had as its primary purpose to penalize individuals who participated in the illegal transportation of controlled substances. The Oklahoma Forfeiture Statute in question is clearly quasi criminal in nature. PROPOSITION III BECAUSE PRIVATE ELECTRONIC MAIL AND PUBLISHING INFORMATION WERE CONTAINED WITHIN THE COMPUTERS SEIZED, A REGULAR SEARCH WARRANT WOULD NOT HAVE BEEN SUFFICIENT TO ALLOW SEARCH AND SEIZURE OF THE PROPERTY IN QUESTION. Assuming arguendo that the Court finds there was sufficient language in the warrant, or the Court considers the search justified based on an exception to the warrant requirement, neither justification is sufficient in the case at bar. Electronic information inside the computers seized contained constitutionally protected private communications and protected publishing information, and such information cannot be searched or seized without meeting heightened requirements formulated to protect the constitutional rights of the possessor. A. The Search and Seizure Was Conducted Contrary to the Electronic Communication Privacy Act Specialized Warrant Requirements and Thus Violated the Fourth Amendment Protection Against Unreasonable Search and Seizure. The Electronic Communications Privacy Act, 18 USC 2510 et seq., was originally passed by Congress to regulate wire tapping only. The law was expanded in the late 1970s to include electronic communications such as private electronic mail. Approximately 150,000 pieces of the electronic mail from throughout the world was housed within the computer equipment seized. Some of these electronic messages were private mail, viewable only by the recipient (See Exhibit "B"). Section 2518 of the Act spells out the procedure to allow a seizure of items containing electronic communications. After application for a warrant is made to a judge, specific findings must be made by the judge to approve the warrant. Subsection 3 of Section 2518 spells out some of the requirements to be included in the affidavit for this type of warrant. (3)(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in 2516 of this Act. (3)(b) There is probable cause for belief that particular communications concerning that events will be obtained through such interception. (3)(c) Normal investigative procedures have tried and have failed or reasonably appear to be unlikely to succeed if tried or if to be too dangerous. Police officers on the scene were advised by their "computer expert" Oklahoma City Police Officer, Gregory Taylor, that a bulletin board system was functioning at the search location (Preliminary Hearing Transcript at P.118). A bulletin board system, by its very nature, is a place for the sending and receiving of messages. Additionally, the police department was put on notice shortly after the seizure that private electronic mail was present within the materials seized (Exhibit "B"). The police may advance the argument that they did not read the electronic mail. This argument is irrelevant since the ECPA makes it a violation to merely "intercept" such communication. Section 2510(4) of the Act defines intercept "the aural or other acquisition of the content of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." The police "accessed" the electronic mail in the most fundamental sense by picking it up and taking it. The seizure prevented any user including Tony Davis from authorized access to their communications stored within the system. Because the seizure was not authorized by a properly drafted warrant (or by any mention on a general warrant), the search and seizure was without authorization and in violation of the Act. B. The Search and Seizure Was Conducted Contrary to the Privacy Protection Act Requirement that the Materials Be Obtained By Subpoena and, thus, Violated Tony Davis' First Amendment Rights. Tony Davis, through his company, Mid-America Digital, published compact disks containing computer software. Records seized by the Oklahoma City Police showed that a large number of sales of "Magnum" CDs, the brand name used by Mid-America Digital. At the search location, there were approximately 2,000 compact disks with the name Mid-America Digital, and address 1501 Southeast 66th, stamped on each disk. (See Exhibit "B"). Although the police seized fifty-seven (57) compact disks that they alleged showed pornographic pictures, none of the Mid-America Digital disks were taken (Preliminary Hearing Transcript at P.75, line 23 and Exhibit "B"). This is because Tony Davis informed the police that Mid-America Digital published computer software of a non-adult nature (Preliminary Hearing Transcript at P.76, line 21-25 and Affidavit of Tony Davis). Neither Tony Davis nor Mid-America Digital were ever accused or suspected of publishing illegal or pornographic materials. Nonetheless, the Oklahoma City Police seized a hard drive within one of the computers which contained approximately 500 megabytes of software that was to be pressed into a compact disk for the next disk to be published by Mid-America Digital. In 1980, Congress enacted the Privacy Protection Act (PPA), 42 U.S.C. 2000aa, in order to require law enforcement officials to obtain evidence by subpoena or voluntary compliance, rather than by search and seizure, from innocent third persons engaged in First Amendment activities. Congress feared that "use of the warrant process in such cases will allow the government to invade the personal privacy of non-suspects in instances where a less intrusive means of obtaining the material -- either voluntary compliance or a subpoena will achieve the same goal." Senate Report No. 874 at 4, 1980 U.S. Code Cong. and Admin. News at 3950- 51. The Act reads: Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce... (42 U.S.C. 2000aa(a). The computer equipment seized was plainly used "to disseminate to the public a newspaper, book, broadcast or other similar form of public communication." First, Mid-America Digital published collections of software on compact disks and sold it to other computer users. The definition of documentary materials found in 2000aa-7 indicates that the materials include electronic information recorded on disks. Secondly, the actual bulletin board system, before it was dismantled, could be read from anywhere in the world and offered articles and information to persons dialing into the system. A list of the "databases" contained within the bulletin board system for viewing by subscribers is set forth in Exhibit "B" Page 3. Subsection (b) of 2000aa indicates that there are four requirements necessary in order for the government to search and seize such publishing materials. (b)(1) There is probable cause to believe that the person possessing such material has committed or is committing the criminal offense to which the materials relate. (b)(2) There is reason to believe that the immediate seizure of such materials necessary to prevent the death of, or serious bodily injury to, a human being; (b)(3) There is reason to believe that the giving of notice pursuant to a subpoena duces tecum would result in the destruction, alteration, or concealment of such materials; or (b)(4) Such materials have not been produced in response to a court order directing compliance with a subpoena duces tecum and (a) all appellant remedies have been exhausted; or (b) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings related to the subpoena would threaten the interest of justice. (c) in the event a search warrant is sought pursuant to paragraph 4b of Section b, the person possessing the material shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any connection of the materials sought are not subject to seizure. There was never any evidence to indicate that the publishing efforts of Mid-America Digital were in any way related to the alleged pornography on the "adult" disks seized. In fact, the police were apparently convinced of this since they left some 2,000 compact disks behind, giving as their only reason that they were told by Tony Davis that they did not contain pornographic material (Preliminary Hearing Transcript at P.80). Additionally, the only aspect of the bulletin board system which was the subject of investigation, were four (4) allegedly pornographic compact disks which were voluntarily removed by Tony Davis prior to the dismantling of the computer network system (Preliminary hearing transcript at p.54). The police's search and seizure swept so broadly that a number of First Amendment protected items were seized in violation of the United States Constitution. WHEREFORE, premises considered, the respondent owner of the described property, Anthony A. Davis, respectfully asks this Court to dismiss the State's forfeiture action and order the return of the property seized. Respectfully submitted, _________________________________ WILLIAM R. HOLMES, ATTORNEY, P.C. OBA #11867 118 East Main Street Norman, OK 73069 (405) 329-6600 Attorney for Defendant. CERTIFICATE OF DELIVERY This is to certify that on the 17th day of December, 1993, a copy of the above and foregoing instrument was hand-delivered to: Civil Division District Attorneys Office 505 County Office Bldg. 320 Robert S. Kerr Ave. Oklahoma City, OK 73102 _________________________________ WILLIAM R. HOLMES

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