;Date 11 Nov 92 12:30:35 To: Tomj@1:125/111 Subject: Re: ECPA suit settled (for $) Options

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;Date 11 Nov 92 12:30:35 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit settled (for $) Options: kill-sent private ;Status: (read 4 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:09:02 PST Subject: Email privacy case settled The long running Alcor/email case against the County and City of Riverside, CA was settled out of court in April of this year. The announcement was delayed until all parties had signed off, and the check (for $30k) had cleared the bank :-). The Alcor Life Extension Foundation (a non-profit cryonics organization --alcor@cup.portal.com) ran a BBS for members and prospective members from early 1987 through January 12, 1988. On that day, the BBS computer was removed under a warrant to take the computer (but no mention of any contained email) in connection with the investigation into the death of 83-year-old Dora Kent. (Mrs. Kent was placed into cryonic suspension by Alcor in December of 1987. During and following the investigation, Alcor staff members were publicly accused by county officials of murder, theft, and building code violations. No charges were ever filed and the investigation was officially closed three years later.) In December of 1988 Keith Henson filed a civil suit to force an investigation of the apparent violations of the Electronic Communication Privacy Act by the FBI, but the case was dismissed by the now convicted Judge Aguilar. In early 1990, just before the statute of limitations ran out, Henson and 14 others (of the roughly 50 people who had email on the system) filed a civil action against a number of officials and the County and City of Riverside, CA under Section 2707 of the Electronic Communication Privacy Act. Some time after the case was filed, the Electronic Frontier Foundation came into existence in response to law enforcement abuses involving a wide spectrum of the online community. EFF considered this case an important one, and helped the plaintiffs in the case by locating pro bono legal help. While the case was being transferred, the County and City offered a settlement which was close to the maximum damages which could have been obtained at trial. Although no precedent was set because the case did not go to trial, considerable legal research has been done, and one judgment issued in response to the Defendants' Motion to Dismiss. The legal filings and the responses they generated from the law firm representing the County/City and officials are available by email from mnemonic@eff.org or (with delay) from hkhenson@cup.portal.com. (They are also posted on Portal.) The Plaintiffs were represented by Christopher Ashworth of Garfield, Tepper, Ashworth and Epstein in Los Angeles (408-277-1981). A summary of the settlement agreement is attached. SETTLEMENT AGREEMENT This agreement is made and entered into in Riverside, California, this _____ day of ______ by and between [long list of defendants and plaintiffs] I. FACTUAL RECITALS 1. This Agreement is executed with reference to the following facts for purpose of this Agreement only. 2. On January 12, 1998, some of the Defendants, pursuant to a search warrant, entered into the premises of Alcor Life Extension Foundation in Riverside, California. 3. Upon entry into the property, some of the Defendants seized various items, including electronic media containing E-mail owned by the plaintiffs. 4. On or about January 11, 1990, plaintiffs commenced civil action No. SAC 90-021js in the United States District Court, Santa Ana ("the Action"), against the defendants for injuries and damages allegedly suffered as a result of the defendants' seizure of plaintiff's E-mail. 5 It is now the desire and intention of plaintiffs, on the one part, and defendants on the other part, to settle, compromise, and resolve all the differences, disagreements, and disputes, which exist and may exist, including those which are the subject matter of, referred to, related to, or mentioned in the Action. Pursuant to this desire, and in consideration of the mutual promises contained herein, the parties agree as follows. II CONSIDERATION 6. Upon the execution of this Agreement, defendants County of Riverside shall pay to plaintiffs, by check, the total sum of Thirty Thousand Dollars ($30,000), inclusive of attorney fees and cost. 7. [The rest of this is boilerplate, except that they wanted confidentiality of the agreement, to which we would not agree.] ;Date 11 Nov 92 12:30:21 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit filed against city/county Options: kill-sent private ;Status: (read 4 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:06:36 PST From _The Press-Enterprise_ Saturday, Feb 24, 1990 (Posted by Alcor member Keith Henson without permission) ALCOR FILES SUIT OVER ELECTRONIC MAIL SEIZURE By David Bloom, The Press-Enterprise Another legal battle has erupted between Alcor Life Extension Foundation and the law, this time with a federal lawsuit filed by Alcor over the seizure more than two years ago of computerized "electronic mail" during a search of the group`s Riverside headquarters. Alcor members pay up to $100,000 for the privilege of have their bodies put in cryonic suspension, frozen at temperatures hundreds of degrees below zero, after their death. The members hope developing medical technology will one day enable the to be revived and cured. The group ran afoul of local law enforcement officials, however, after the cryonic suspension of the head of Dora Kent in December 1987. The Riverside County coroner's Office accused Alcor members of hastening along Kent's death with a lethal dose of barbiturates in preparation for freezing. The group has denied the accusation, saying the provided only "care and comfort" to the 83 year-old Kent in her last two days. Law enforcement officers raided the Alcor headquarters on Riverside's southwest edge in January 1988, searching for computer equipment, software and related material, and for Kent's body parts, and any illegal drugs. They found the equipment, but not Kent, whose head had been secreted away, or any illegal drugs. The most recent lawsuit was filed last month in U.S. District court in Los Angeles. It accuses a dozen Riverside City and County law enforcement officials of violating the Electronic Communication Privacy Act of 1986. The suit says police illegally seized the electronic mail of 14 Alcor members when it seized the computer equipment. A copy of the search warrant included as an exhibit in the suit does not mention electronic mail. The suit asked for at least $10,000 for each of the alcor member who filed the suit. Most to the same members filed a claim against the city 11 months ago, but the city allowed the claim to expire without response after 45 days, said attorney John Porter, who is representing the city and two policemen named in the suit. "This lawsuit was filed in federal court," Porter said. "It should have been filed the Twilight Zone." The attorney for Alcor could not be reach for comment late yesterday. ;Date 11 Nov 92 12:30:23 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit-court filing Options: kill-sent private ;Status: (read 5 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:07:06 PST 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) COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (Electronic Communications Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.) H. KEITH HENSON, HUGH L. HIXON, JR., THOMAS K. DONALDSON, NAOMI REYNOLDS, ROGER GREGORY, MICHAEL G. FEDEROWITCZ, STEVEN B. HARRIS, BRIAN WOWK, ERIC GEISLINGER, CATH WOOF, BILLY H. SEIDEL, ALLEN J. LOPP, LEE CORBIN RALPH MERKEL, AND KEITH LOFTSTROM Plaintiffs, v. RAYMOND CARRILLO, SCOTT HILL, DAN CUPIDO, ALAN KUNZMAN, ROWE WORTHINGTON, RICHARD BOGAN, REAGAN SCHMALZ, GROVER TRASK, II, ROBERT SPITZER, LINFORD L. RICHARDSON, GUY PORTILLO, individuals, and the COUNTY OF RIVERSIDE, a subdivision of the State of CAlifornia, And the CITY OF RIVERSIDE, a municipal entity, and DOES 1 through 100 inclusive, Defendants. Plaintiffs complain of defendants as follows: JURISDICTIONAL ALLEGATION 1. This case arises under an Act of Congress, namely the Electronic Communication Privacy Act of 1986; U.S.C. Section 2701, et Seq., and in particular, the civil enforcement Provisions thereof, 18 U.S.C. Section 2707. Venue is proper in this Court in that all of the defendants reside in this district. COMMON ALLEGATIONS 2. Plaintiffs are all individuals residing in various point and places in the United States. [except Brian Wowk who resides in Canada.] 3. Defendants Carillo, Hill, Cupido, Kuntzman, Worthington, Bogan, Schmalz, Trask, Spitzer, Hinman and Mosley are all employees of defendant County of Riverside, and at all times material, were acting within the course and scope of their employment. Defendants Richardson and Portillo are all employees of defendant City of Riverside and at all times material, were acting within the course and scope of their employment. Defendant County of Riverside ["county'] is a political subdivision of the State of California. Defendant City of Riverside ["city'] is a municipal entity located within California. Defendants Carillo, Hill, Cupido, Kuntzman, Worthington, Bogan, and Schmalz are employed by defendant County in the Office of the Riverside County Coroner. Defendants Trask, Spitzer, Hinman and Mosley are employed by the said county in the office of the District Attorney, Defendants Richardson and Portillo are employed by defendant City in the Riverside Police Department. ------------------- 4. All of the events complained of herein occurred within two years of the date of filing of the complaint. At all times material, Alcor Life Extension Foundation, a non-Profit corporation with its principal place of business in Riverside County, maintained facilities at its place of business whose purpose was to (in part) facilitate the sending and receipt of electronic mail ["E-mail"] via computer- driven modems and which electronic mail facility was utilized by the plaintiffs, and each of them. The Alcor Facility is remote in geographical location from all plaintiffs. 5. At all times material, each plaintiff had one or more E-mail messages abiding on electron or magnetic medial at the Alcor facility. Prior to [actually on] January 12, 1988, defendants procured from the Riverside Superior Court a search warrant which authorized, in general, a search of the facilities of Alcor. A true and correct copy of that search warrant is attached hereto and marked Exhibit "A". The search warrant does not purport to reach, nor was it intended to reach, any of the E-mail of plaintiffs. 6. On January 12, 1988, defendant entered upon the Alcor premisses and removed many things therefrom including the electronic media containing plaintiffs' E-mail. 7. Contemporaneously with the seizure of the electronic media containing plaintiffs' E-mail, defendants were explicitly informed that they were seizing plaintiffs' E-mail which was not described either generally or specifically in the warrant hereinabove referred to. -------------- 8. No notice was given to any plaintiff by any defendant of the impending seizure of their E-mail. 9. In the process of procuring the warrant, neither the defendants nor anyone else made any showing that there was reason to believe that the contents of any of plaintiffs' E- mail was relevant to any law enforcement inquiry. 10. Subsequent to the execution of the warrant on January 12, 1988, no notice was given to any plaintiff by any government entity, including the defendants, nor any defendant herein, at any time, regarding the defendants acquisition and retention of plaintiffs' E-mail. 11. The court issuing the warrant in respect of the Alcor facility did not, prior to the issuance of the warrant nor at any other time, determine that notice to plaintiffs compromised any legitimate investigation within the meaning of 18 U.S.C. section 2705(a)(2). 12. Not withstanding that defendant and each of them were informed that they had taken, along with materials describe in the warrant, E-mall belonging to plaintiffs, said defendants knowingly and willfully (a) continued to access the electronic and magnetic media containing plaintiffs' E-mail and (b) continued to deny access to plaintiffs to such E-mail for many months although a demand was made for the return of the said E-mail. Defendants' wrongful access to and retention of plaintiffs' E-mail was intentional within the meaning of 18 U.S.C. section 2707. -------------- 13. Proximately caused by the unprivileged actions of the defendants hereinbefore described, each plaintiff has suffered damage in an amount to be proved at trial, but in no event less than $10,000 each. WHEREFORE plaintiffs pray: 1. For damages according to proof; 2. For cost of suit; 3. For Attorneys' fees pursuant to 18 U.S.C. section 2707(b)(3); and 4. For such other and further relief as is required in the circumstances. Date: January 11, 1990 GARFIELD, TEPPER, ASHWORTH, AND EPSTEIN A Professional Corporation (signed) CHRISTOPHER ASHWORTH Attorneys for Plaintiffs -------------- Exhibit "A" COUNTY OF RIVERSIDE, STATE OF CALIFORNIA SEARCH WARRANT To any Sheriff, Police Officer, Marshal or Peace Officer in the County of Riverside. Proof, by sworn statement, having been made this day to me by Alan Kunzman and it appearing that there is probable cause to believe that at the place and on the persons and in the vehicle(s) set forth herein there is now being concealed property which is: ____ stolen or embezzled property __x__ property and things used to commit a felony __x__ property possessed (or being concealed by another) with intent to commit a public offense __x__ property tending to show a felony was committed; YOU ARE THEREFORE COMMANDED TO SEARCH : the premises located at [description of Alcor address at 12327 Doherty St.] including all rooms attics, basements, storage areas, and other parts therein, garages, grounds and outbuilding and appurtenances to said premises; vehicles(s) described as follows: (not applicable) and the persons of (not applicable) for the following property: 1. All electronic storage devices, capable of storing, electronic data regarding the above records, including magnetic tapes, disc, (floppy or hard), and the complete hardware necessary to retrieve electronic data including CPU (Central Processing Unit), CRT (viewing screen, disc or tape drives(s), printer, software and service manual for operation of the said computer, together with all handwritten notes or printed material describing the operation of the computers (see exhibit A - search warrant no., 1 property to be seized #1) 2. Human body parts identifiable or belonging to the deceased, Dora Kent. 3. Narcotics, controlled substances and other drugs subject to regulation by the Drug Enforcement Administration. article of personal property tending to establish the identity of person in control of premise, vehicle, storage areas, and containers being searched, including utility company receipts, rent receipts, address envelopes and keys and to SEIZE it if found and bring it forthwith before me or this court at the courthouse of this court. Good cause being shown this warrant my be served at any time of the day or night as approve by my initials_________ Time of issuance _______ Time of execution __1600__ Given under my hand and dated this 12th day of January 1988 Thomas E. Hollenhorst Judge of the Superior Court ------------- UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA H. KEITH HENSON, see attachment "A" PLAINTIFF(S) vs. RAYMOND CARRILLO, see attachment "A" DEFENDANTS(S) CASE NUMBER SA CV- 90-021 JSL Rw Rx SUMMONS ----------------------------------------------- TO THE ABOVE NAMED DEFENDANT(S), your are hereby summoned and required to file with this court and serv upon Christopher Ashworth, Esq. GARFIELD, TEPPER, ASHWORTH & EPSTEIN A Professional Corporation Plaintiff's attorney, whose address is: 1925 Century Park East, Suite 1250 Los Angeles, California 90067 (213) 277-1981 an answer to the complaint which is herewith serve upon you within __20__ days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Date Jan. 11, 1990 CLERK, U.S. DISTRICT COURT By MARIA CORTEZ Deputy Clerk (SEAL OF THE COURT) ;Date 11 Nov 92 12:30:25 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: ECPA suit, motion to dismiss Options: kill-sent private ;Status: (read 5 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:07:37 PST Ok folks, as I promised, here are the legal papers filed in the email case since the original filing. Typos are most likely mine. Comments are in [brackets], skipping the first few pages is recommened. Sorry it took so long, I recieved copies of this stuff only yesterday. ---Keith Henson KINKEL, RODIGER & SPRIGGS BRUCE DISENHOUSE 3393 Fourteenth Street Riverside, CAlifornia 92501 (714) 683-2410 GREINES, MARTIN, STEIN & RICHLAND MARTIN STEIN 9601 Wilshire Boulevard, Suite 544 Beverly Hills, California 90210-5215 (213) 859-7811 Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA H. KEITH HENSON, et al., Plaintiffs, vs. Raymond Carrillo, et al., Defendants. Case No. SA CV 90-021 JSL (RwRx) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (Electronic Communication Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.) PURSUANT TO RULE 12 (b), F.R.C.P.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: April 30, 1990 Time: 1:00 p.m. Courtroom: No. 2 Trial Date: None set TABLE OF CONTENTS MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; U.S.C. Section 2701, et seq.) Page 3 MEMORANDUM OF POINTS AND AUTHORITIES page 5 INTRODUCTION AND STATEMENT OF RELEVANT FACTS page 5 LEGAL DISCUSSION page 7 I. THE COMPLAINT SHOULD BE DISMISSED AS TO ALL NAMED DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER THE ELECTRONIC COMMUNICATION PRIVACY ACT. page 7 II. EVEN IF THIS COURT WERE TO CONCLUDE THAT THE SEARCH WARRANT WAS TECHNICALLY DEFICIENT, STILL DEFENDANTS ARE PROTECTED FROM SUIT BY THE DOCTRINE OF GOD-FAITH RELIANCE. THUS THE COMPLAINT SHOULD BE ORDERED DISMISS ON THIS ADDITIONAL GROUND. page 11 CONCLUSION page 13 TABLE OF AUTHORITIES Cases Burrows v. Superior Court page 10 13 Cal.3d 238 (1974) Harlow v. Fitzgerald, page 12 457 U.S. 800 (1982) People v. Dumas, page 10 Cal.3d 871 (1973) Robison v. Via, page 12 821 f.2d 913 (2d Cir. 1987) Tomer v. Gates page 12 811 f.2d 1240 (9th Cir. 1987) U.S. v. McLaughlin, 851 f.2d 283 (9th Cir. 1986) U.S. v. Michaelian, 803 f.2d 1042 (9th Cir. 1986) U.S. v. Spilotro 800 f.2d 959 (9th Cir. 1986) Statues 18 U.S.C. Section 2701 18 U.S.C. Section 2707 Constitutions Unites state Constitution, Fourth Amendment Rules Federal Rules of Civil Procedure, Rule 12(b) United States District Court for the Central District of California, Local Rule 7.6 Local Rule 7.9 Misc. 1986 U.S Cond Cong Adm Nes, Ann. TO PLAINTIFFS H. KEITH HENSON, ET AL., AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 30, 1990 at 1:00 p.m. or as soon thereafter as the matter may be heard in Courtroom 2 of the Honorable J. Spencer Letts, Judge of the United states district Court for the Central District of California, 751 Santa Ana Boulevard, Santa Ana, California 92701-4599, defendants County of Riverside, Grover C Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer, and John V. Mosley will bring on for hearing the accompanying Motion to Dismiss complaint for Declaratory Relief, and Damages (Electronic Communication Privacy Act of 1986; 18 U.S.C. Section 2701, et seq.). Defendants' motion will be brought pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and will be based on this Notice of Motion and Motion, the attached memorandum of ports and authorities, and on such other and further documentation evidence and argument as may be presented in support of this motion. PLEASE TAKE FURTHER NOTICE that under Local Rule 7.6 of the United States District Court for the Central District of California, a party opposing a motion shall, not later than 14 days before the date set for hearing of the motion, serve upon all parties and file with the clerk of the court either (a) a brief, but complete memorandum containing a statement of all reasons in opposition to said motion, and the point and authorities upon which the opposition party will rely, or (b) a written statement that he will not oppose the motion. Under Local Rule 7.9, failure to file any required papers may be deemed by the court consent to the granting of the motion. Dated: March 27, 1990. Respectfully submitted, [boilerplate] [signed] Martin Stein [page 3] MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES (ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; 18 U.S.C. Section 2701, et seq.) Pursuant to the provisions of rule 12(b) of the Federal Rules of Civil Procedure, defendants [list], hereby move to dismiss the Complaint for declaratory relief and damages on file herein on the following separate grounds: 1. Plaintiffs have failed to allege sufficient facts to state a a claim for relief against the named defendants herein in that the allegations of the Complaint and attached documentation establish as a matter of law that defendant did not violate the provision of the ECPA in execution a facially valid search warrant. 2. Even assuming that a technical violation of the ECPA has properly been alleged by the plaintiffs in the instant case, the named defendants herein are entitled to dismissal on the basis of their good-faith reliance on the terms of a facially valid search warrant, pursuant to the provisions of 18 U.S.C. section 2707(d)(1). WHEREFORE, defendants [list] and each of the pray as follows: 1. That each of their motions to dismiss the Complaint be granted without leave to amend; 2. The the Complaint and each claim for relief alleged therein be ordered dismissed as against each of these defendants; 3. That plaintiffs be ordered to take nothing from defendants; 4. That defendants be awarded judgement for their cost of suit incurred herein; 5. That this court grant such other and further relief as it deems just and proper. Dated: March 27, 1990 [boiler plate/signed Martin Stein] [page 5] _MEMORANDUM OF POINTS AND AUTHORITIES_ _INTRODUCTION AND STATEMENT OF RELEVANT FACTS_ Plaintiffs seek damages and injunctive relief based on the purported acts of the named defendants herein in executing a facially valid search warrant. The assert that in executing the search warrant, defendants violated the provisions of the ECPA. More specifically, plaintiffs allege that at some unspecified date prior to January 12, 1988, defendants procured from the Riverside County Superior Court a search warrant which authorized, in general, a search of the facilities of Alcor. Plaintiffs assert, however, that the search warrant did not purport to reach, nor was it intended to reach any of plaintiffs E_Mail. Complaint [paragraph] 5. [footnote--Plaintiffs assert that E-Mail was the facilitation, sending and receipt of electronic mail via computerized modems. Complaint, para 4] Plaintiffs assert that pursuant to the search warrant, on January 12, 1988, defendants searched Alcor's premises and removed a variety of items including the electronic media containing plaintiffs E-Mail. Complaint [paragraph] 6. Plaintiffs conclude by alleging that notwithstanding that defendants and each of the were informed that they had taken, along with materials described the warrant, E-Mail belonging to plaintiffs, that defendants herein knowingly and willfully (a) continued to access the electronic and magnetic media containing plaintiffs' E-Mail and (b) continued to deny access to plaintiffs to such E_Mail for many months although a demand was made for the return of said E-Mail. Plaintiffs thus concluded that defendant's wrongful access and retention of plaintiffs' E-Mail was intentional within the meaning of 18 U.S.C. Section 2707, Complaint, paragraph 12. Notwithstanding the allegations of plaintiffs' Complaint, it can be readily determined from a review of the search warrant attach thereto (see Attachment A) that defendants did not violate or exceed the specific terms of the search warrant order obtained by them prior to its execution at Alcor's premises. This court should therefore determine that, as a matter of law, there has been no violation of the ECPA, and plaintiffs have failed to state a claim for relief, thus requiring a dismissal of the complaint as to all defendants. Even if it were otherwise, the named defendants are entitled to dismissal on the basis of their good-faith reliance on a facially valid Riverside County Superior Court search warrant and thus, their good-faith reliance on that search warrant is a complete defense as to the instant action, pursuant to 18 U.S.C. section 2707(d)(1). [page 7] _LEGAL DISCUSSION_ THE COMPLAINT SHOULD BE DISMISSED AS TO ALL NAMED DEFENDANTS BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER THE ECPA Plaintiffs seek to pursue the instant civil action based on a purported violation of the ECPA of 1986. Specifically, plaintiffs seek to pursue an action pursuant to 18 U.S.C. section 2707 which provides that a provider of electronic communication service, subscriber or customer of any such service aggrieved by any purported violation of this section my recover from any person or entity who knowingly or intentionally violates the Act. Thus, plaintiffs assert that defendants knowingly and wilfully accessed electronic and magnetic media containing their E-Mail and continued to deny access to plaintiffs of such E-Mail even after a demand for return of said E-Mail had been made and that such seizure was not authorized by the specific terms of a Riverside County Superior Court search warrant which authorized, in general, a search of the facilities of Alcor Life Extension Foundation, which maintained facilities at its place of business to facilitate the sending and receiving of electronic mail via computerized modems and which electronic mail facility was utilized by plaintiffs in this case. We note preliminarily that while plaintiffs seek to assert a violation of the ECPA they make no claim that defendants violated their Fourth Amendment rights to be free from illegal searches and seizures, in executing the search warrant in question. Rather their claim is strictly based on a non-constitutional violation of their rights under the Act, based on their allegation that the search warrant did not purport to reach, nor was it intended to reach, any of their E-Mail. Defendants submit that while plaintiffs are not required to allege any Fourth Amendment violation of rights in order to proceed with their ECPA cause of action, their failure to assert a Fourth Amendment violation is significant. Here, the failure to make an allegation of Fourth Amendment violation is critical since it would appear that if the search warrant was facially valid and if defendants could not be said to have violated any of plaintiffs' Fourth amendment Rights, then this court should according find that no violation of the ECPA occurred. It is submitted that the ultimate review of the search warrant, in terms of facial validity should be the same whether this court be guided by Fourth Amendment principles or the specific terms of the Act. Turning to the search warrant which is included as attachment A to the complaint, it appears that it provided for a search of the premises at 12337 [wrong address] Doherty St. in the City and County of Riverside, apparently the address of the Alcor Life Extension Foundation. According to the search warrant authorization, a search was authorized by a judge of the Riverside Superior court for property and other items potentially used to commit a felony, property possessed with intent to commit a public offense and/or property tending to show that a felony had been committed. The search warrant specifically authorized the search and potential seizure of " 1. 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). 2. Human body parts identifiable as belonging to the deceased, Dora Kent; 3. Narcotics, controlled substances and other drugs subject to regulation by the Drug Enforcement Administration." From a reivew of the contents of the search warrant, and contrary to plantiffs' allegations in the complaint, it would appear that the purported seizure of electronic E-Mail was specifically authorized by paragraph 1 of the search warrant set out above. That paragraph specifically permittted the seizure of all electronic storage devices capable of storing electronic data including magnetic tapes, discs and hardware necessary to retrieve electronic data. As previously noted, since electronic mail is a type of communication which is typed into a computer terminals and potentially then stored in that computer system, the language of the warrant clearly should be found to cover the seizure that took place in this case. Defendants have found no authority suggesting that a search warrant as specific as that found in the instant case, violates the requirements of particularly which would subject the warrant to a finding of invalidity. Under California law, it is well settled that "The requirement of particularly is designed to prevent general exploratory searches which unreasonably interfere with a person's right to privacy. . . . [T]his requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized." _Burrows v. Superior Court_, 13 Cal.3d 283, 249 (1974). As the California Supreme Court has observed in another instance, "nothing should be left to the discretion of the officer." _People v. Dumas_, 9 Cal.3d 871, 880 (1973). As noted by the Ninth Circuit Court of Appeals, while precise description of the items to be seized in accordance with a search warrant is not always possible, some specificity is required. _U.S. v. McLaughlin_, 851 F.2d 283, 285 (9th Cir. 1988). As required by the _McLaughlin_ case and the California authority previously cited, the search warrant specifically described the property to be seized and the specification imposed a meaningful restriction upon what objects would be taken by the police during the execution of the search. Thus, since it would appear that the search warrant satisfied the particularity requirement of both state and federal law, no violation of plaintiffs Fourth Amendment rights could be said to have occurred and, indeed, as noted above, no such allegation of violation of the constitutional rights is alleged. Assuming that the search warrant satisfies Fourth Amendment standards, there can be no legitimate polity reason asserted by plaintiffs which would permit this court to find that the search warrant did not comply with the specific terms of the ECPA. In sum, since the specific terms of the search warrant may be found to have authorized the seizure of plaintiffs' E-Mail, this court should find that no proper claim for relief has been stated by the plaintiffs and the complaint should be ordered dismissed. II _EVEN IF THIS COURT WERE TO CONCLUDE THAT THE SEARCH WARRANT WAS TECHNICALLY DEFICIENT STILL DEFENDANTS ARE PROTECTED FROM SUIT BY DOCTRINE OF GOOD-FAITH RELIANCE THUS, THE COMPLAINT SHOULD BE ORDERED DISMISSED ON THIS ADDITIONAL GROUND._ Even if this Court were to find that a technical violation of the ECPA had occurred due to the seizure of plaintiffs' E-Mail in the instant case, defendants nevertheless would be entitled to dismissal of the action pursuant to the provision of 18 U.S.C. section 2707(d)(1) which provides a complete defense for good-faith reliance on a facially valid court warrant or order. [The cited section refers to warrants *for* email, and plaintiffs arguement is that deffendants had no such warrant.] In the instant case, as explained in section I of this memorandum, defendants were in fact engaged in the execution of a facially valid search warrant. Thus, under the circumstances, their conduct should be found to fall within the rule of good-faith reliance. It should be noted that there are as yet no decisions interpreting the good-faith defense provided by the provisions of section 2707. However there is a significant body of case law regarding the doctrine of qualified immunity. Thus, the doctrine of qualified immunity has been recognized to shield government employees from civil right suits and is available in that context unless the officials "knew or reasonably should have know that [his or her] action . . . would violate . . . constitutional right . . . . " _Harlow v. Fitzgerald_, 457 U.S. 800, 815 (1982), emphasis omitted. In civil rights cases qualified immunity is available as a defense in three circumstances: (1) If it is unclear at the time of the challenged acts that plaintiff had a constitutionally protected interest; (2) even if plaintiff has a constitutionally protected interest, it was unclear at the time whether an exception would be permitted; and (3) even if plaintiffs's rights were clearly delineated, qualified immunity is still available if was objectively reasonable for defendant to feel that their acts did not violate plaintiff's constitutional rights. _Robision v. Via_, 821 F.2d 913, 920-921 (2d Cir. 1978); _Tomer v. Gates_, 811 f.2d 1240, 1242 (9th Cir. 1987). Further, the good-faith exception to the exclusionary rule has been found to be inapplicable only when a warrant is "so facially overbroad as to preclude reasonable reliance by the executing officers," _U.S. v. Michaelian_, 803 F.2d 1042, 1046 (9th Cir. 1986), or when the officers do not act in good faith _U.S. v. Spilotro_, 800 f.2d 959,. 968 (9th Cir. 1986) In the instant case, defendants were entitled to good-faith immunity for a number of reasons. First, as explained in the prior section of this memorandum, the search warrant was not so facially overbroad as to preclude reasonable reliance on its terms by the defendants herein. Moreover, it was not "clearly established" at the time of the events in this case that the seizure would somehow be found to be in violation of either the Forth Amendment or the specific terms of the ECPA of 1986. Defendants did not have the benefit of established precedent with respect to the doctrine of good-faith immunity as it applied to the specific terms of the federal Act. Finally, in light of the specific language in the search warrant, this court should determine that it was objectively reasonable for defendants to conclude that seizure of the E-Mail was specifically authorized. Here, there could have been at most no more than a technical violation in the execution of the search warrant and no prior precedent interpreting the specific terms of the statute. These are precisely the circumstance in the good-faith immunity should be found to shield defendants form civil liability. For this reason, too, the complaint should be dismissed. [There is certainly an interesting Catch 22 in this reasoning. The condition of having no precidents is being used as a reason to dismiss the case. If all cases are dismissed on this basis, no precedent will ever be set!] CONCLUSION For the forgoing reasons, defendants respectfully submit that this court should grant their motion to dismiss plaintiffs' action for violation of the ECPA since they have failed to plead an appropriate federal claim under this statue. In the alternative, this court should find that the named defendants herein are entitled to good-faith immunity under the statue and, thus, the complaint should be dismissed for this reason as well. Dated: March 27, 1990 [signed etc] ;Date 11 Nov 92 12:30:30 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: reply to motion to dismiss Options: kill-sent private ;Status: (read 6 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:08:00 PST 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. ;Date 11 Nov 92 12:30:33 From: Uucp@1:125/555 To: Tomj@1:125/111 Subject: Re: reply to reply and judges ruling Options: kill-sent private ;Status: (read 6 times) ;INTL 1:125/111 1:125/555 From kumr!cup.portal.com!hkhenson From: hkhenson@cup.portal.com To: tomj@fidosw.fidonet.org Date: Wed, 11 Nov 92 12:08:26 PST This is the final round on the motion before the judge ruled. The ruling is attached. ---Keith Henson KINKEL, RODIGER & SPRIGGS BRUCE DISENHOUSE 3393 Fourteenth Street Riverside, CAlifornia 92501 (714) 683-2410 GREINES, MARTIN, STEIN & RICHLAND MARTIN STEIN 9601 Wilshire Boulevard, Suite 544 Beverly Hills, California 90210-5215 (213) 859-7811 Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA H. KEITH HENSON, et al., Plaintiffs, vs. Raymond Carrillo, et al., Defendants. Case No. SA CV 90-021 JSL (RwRx) REPLY TO OPPOSITION TO MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES Date: May 14, 1990 Time: 1:00 p.m. Courtroom: No. 2 Trial Date: None set MEMORANDUM OF POINTS AND AUTHORITIES Contrary to plaintiff's assertions, the complaint must be dismissed as to all of the named defendants because plaintiffs have failed to state a claim for relief pursuant to the Electronic Communications Privacy Act and, in any event, defendants are shielded from liability by the good-faith immunity provided by the statute. This court will recall that in their motion to dismiss the complaint, defendants asserted that from a review of the search warrant attached thereto (Attachment A to complaint), they did not violate or exceed the specific terms of the search warrant order obtained by them prior to its execution at Alcor's premises and even if it were otherwise, the named defendants were entitled to dismissal on the basis of their good-faith reliance on the facially valid Riverside County Superior Court search warrant. In seeking to oppose defendants' motion to dismiss, plaintiffs, rather than focusing on the specific allegations of their complaint and the specific statutory and case authority supporting their action, attempt to establish the invalidity of defendants' conduct and their lack of good faith in executing a search warrant, relying instead on materials not incorporated by reference in their complaint or alleged therein. It would appear that in order to oppose the instant motion to dismiss, plaintiffs quite improperly attempt to convert defendants' motion to dismiss predicataed on Federal Rules of Civil Procedure, Rule 12(b)(6), to a motion for summary judgment pursuant to Federal Rules of Civil Procedure, Rule 56. This they may not do. Plaintiffs improperly attempt to shift their focus in opposition to the otion to dismiss by arguing that defendants had a purported duty to supply this court with evidentiary materials consisting of the affidavit in support of search warrant and then proceed to contend that defendants would have to demonstrate to this court that they had supplied the court issuing the warrant with tehse materials, thus permitting that 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." Opposition, pp. 2-3. Having made this baldface assertion, plaintiffs then proceed to improperly put before this court the purported affidavit which they claim was utilized to obtain the search warrant in this case. However, plaintiffs have cited no authority and, indeed, defendants are aware of no proper authority which would permit plaintiffs to bring before this court a document purporting to be the affidavit n support of search warrant, since, again, plaintiffs are not faced with opposing a motion for summary judgment, but rather a motion to dismiss complaint based on the lack of supporting allegations in their complaint to proceed to trial. Once this court makes a determination that the materials placed in plaintiffs' opposition have no proper place in that document, we are left with an opposition which is barren of any relevant authority to establish that defendants in fact violated the specific terms of said warrant at the time of its execution. Moreover, plaintiffs have made no proper argument to establish that defendants failed to act in good faith in executing what defendants contend was a facially valid warrant. While defendants do not quarrel wilth the concept that a search warrant issuing from a court is inseparable from and must be read in connection with the underlying affidavits which are attached to it (see United States v. Stanert, 762 f.2d 775,778 (9th Cir. 1985)), in the instant case the specific terms of the search warrant affidavit having not been alleged or incorporated by reference in plaintiffs' compalint, cannot now be utilized by plaintiffs to suggest that the search warrant in this case was overbroad, thus somehow negating defendants' assertion of good-faith immunity. Contrary to plaintiffs' assertion, the search warrant in the instant case did not declare open season on all books and records at the property where the search and seizure occurred. Neither the allegations of the plaintiffs' complaint, nor the search warrant attached thereto, established that defendants were involved in a search of unlimited scope. In sum, based on the arguments contained in defendants' trial motion to dismiss and this reply, this court should find that the search involved in the instant case violated neither Fourth Amendment requirements or the specific terms of the Electronic Communications Privacy Act or, in the alternative, that the defendants were, in fact, acting in good faith at the time of the search and seizure at the Alcor premises. CONCLUSION For all of the foregoing reasons, defendants respectfully submit that this court should grant their motion to dismiss plaintiffs' action for violation of the Electronic Communications Privacy Act since it is now obvious that they have failed to plead an appropriate federal claim under this statute. Rather, plaintiffs' last-minute attempt to shift their position to establish illegality by virtue of materials never put before the court properly by way of allegation in the complaint and/or by way of an incorporation by reference, must be summarily rejected. Since plaintiffs do not seek leave to amend to attempt to state a proper cause of action under the federal statute, this court should appropriately enter a dismissal. [signed/boilerplate] UNITED STATES DISCTRICT COURT MOTION TO DISMISS H. KEITH HENSON, et al., Plaintiffs, vs. Raymond Carrillo, et al., Defendants. SA CV 90-021 JSL ORDER DENYING DEFENDANTS' MOTION TO DISMISS The Motion of defendants to dismiss plaintiffs' complaint for came on for hearing regularly on May 14, 1990. Defendants moved to dismiss on the grounds that the complaint failed to state a claim pursuant to Federal Rule of Civil Procedure 12(b)6. Defendants asserted that, as a matter of law, no violation of the Electronic Communication Privacy Act of 1986, 18 U.S.C section 2701, et seq. occurred, or, alternately, that defendants are entitled to dismissal due to their good faith reliance on a facially valid search warrant. Having reviewed the papers filed in connection with this matter, having heard oral argument, and being fully apprised of the relevant facts and law, IT IS HEREBY ORDERED that the Motion of defendants to dismiss the complaint is DENIED. Said denial shall be without prejudice should defendants wish to raise these same issues later in these proceeding. IT IS SO ORDERED. DATED: May 18, 1990 [signed] J. Spencer Letts United States District Judge

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