Petition for Writ of Certiorari — Patrick O. Neiss, Petitioner v. Montana

Supreme Court briefAug 26, 2019

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Docket No.

In the Supreme Court of the United States

______________________________

PATRICK O. NEISS,

Petitioner,

STATE OF MONTANA,

Respondent.

______________________________

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MONTANA

______________________________

ERIC NELSON

Attorney for Petitioner

54 Florence St

Staten Island, NY 10308

718-356-0566

ericnelson@ericnelsonesq.com

Questions Presented

1. In Holland v. United States, 348 U.S. 121, 125 (1954) this Court recognized

the “inherent risk” of the use of circumstantial evidence, but held that a special

instruction was not required so long as certain precautions are taken. Courts and

commentators have struggled with the lack of clarity concerning whether these

precautions apply to all circumstantial evidence cases or only in net worth

prosecutions of the type in Holland as the Court entertained both arguments, i.e. (a)

that the precautions do not apply across the board, and (b) that if the rejection of

the cautionary jury instruction is to be applied broadly, so are the warnings

regarding the use of circumstantial evidence.

Should this lack of clarity be resolved by this Court?

2. The State trial court gave the following jury instruction: “When

circumstantial evidence is susceptible to two interpretations, one that supports

guilt and the other that supports innocence, the jury determines which is most

reasonable.” Petitioner objected, contending that the language instructing the jury

to “determine[] which is most reasonable” violated federal constitutional protections

because the instruction diluted the State’s burden of proof and compromised his

right to be presumed innocent.

When giving a circumstantial evidence instruction, most state courts require

the trial court to include language that if the circumstantial evidence is “open to

two reasonable constructions, one indicating guilt and the other innocence, it is

your duty to accept the construction indicating innocence.” See Hampton v. State,

961 N.E.2d 480, 491 (Ind. 2012); State v. Sanchez, 388 Mont. 262, 399 P.3d 886, 891

(2017) (McKinnon, concurring) (“In my view, the ‘most reasonable’ instruction is

inconsistent with the presumption of innocence to which a defendant is entitled.”).

Is the instruction in this case, which essentially instructed the jury that it

could reject a reasonable interpretation of the evidence that supports innocence,

unconstitutional?

3. The State trial court also gave the following jury instruction: “ Proof

beyond a reasonable doubt is proof of such a convincing character that a reasonable

person would rely and act upon it in the most important of his or her own affairs.

Beyond a reasonable doubt does not mean beyond any doubt or beyond a shadow of

a doubt.”

Does this instruction, which is the subject of debate in the United States

Court of Appeals– compare, e.g. Monk v. Zelez, 901 F.2d 885, 889-90 (10th Cir.1990)

(unconstitutional) and Scurry v. United States, 347 F.2d 468, 470 (D.C.Cir.1965)

(same) cert. denied , 389 U.S. 883 (1967) with Ramirez v. Hatcher, 136 F.3d 1209

(9th Cir.) (explicitly rejecting Monk, id. at 1214 n.11), , cert. denied, 525 U.S. 967

(1998) and United States v. Williams, 20 F.3d 125, 129 (5th Cir.), cert. denied, 513

U.S. 891 (1994); cf. Holland v. United States, 348 U.S. 121, 140 (1954) (disfavoring

phrasing reasonable doubt even as doubt “which [people] in more serious and

important affairs of [their] own lives might be willing to act upon.”)– whether by

itself or in combination with the instruction in Question 2, dilute the State’s burden

of proof and compromise Petitioner’s right to be presumed innocent?

4. A search warrant authorized the seizure of all “electronic devices,”

including all computers found in the home and “the information contained

therein” was both overbroad and lacked particularity and probable cause for the

seizure because this was not a computer-based crime, but instead a homicide

investigation. A second warrant, obtained two and one-half years

after the computers were originally seized had no temporal or substantive

limitations and it purportedly authorized the search and seizure of an unlimited

amount of data. A forensic search conducted by the F.B.I. showed the chrome web

history related to key word searches found on one of the computers and the

prosecution argued that this internet search history was proof Petitioner planned

to commit the homicide. Courts have struggled with questions of probable cause and

particularity and “good faith” reliance upon the warrant in this circumstance. See,

e.g., Nicole Friess, When Rummaging Goes Digital: Fourth Amendment

Particularity and Stored E-Mail Surveillance, 90 Neb. L. Rev. (2013); Symposium:

The Search and Seizure of Computers and Electronic Evidence Search Warrants in

an Era of Digital Evidence 75 Miss. L.J. 85 (2005-2006); Susan W. Brenner &

Barbara A. Fredericksen, Computer Searches And Seizures: Some Unresolved Issues,

8 Mich. Telecomm. & Tech. L . Rev. 39 (2002 ).

Should the results of a forensic search of the computers, including the

chrome web history of internet searches found on one of the computers, have been

suppressed?

iii

List of Parties

All parties appear in the caption of the case on the cover page.

List of Proceedings

There are no other proceedings involving the Petitioner.

Table of Contents

Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

List of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

List of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Search Warrant for 7200 Central Avenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Execution of Search Warrant at 7200 Central Avenue . . . . . . . . . . . . . . . . . . 4

Seizure and Subsequent Search of Computers . . . . . . . . . . . . . . . . . . . . . . . . 5

Additional Evidence During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. ADVISING A JURY IN A CIRCUMSTANTIAL EVIDENCE CASE THAT

“WHEN CIRCUMSTANTIAL EVIDENCE IS SUSCEPTIBLE TO TWO

INTERPRETATIONS, ONE THAT SUPPORTS GUILT AND THE

OTHER THAT SUPPORTS INNOCENCE, THE JURY DETERMINES

WHICH IS MOST REASONABLE” DILUTES THE STATE'S

BURDEN OF PROOF AND COMPROMISES THE RIGHT TO BE

PRESUMED INNOCENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. THE SEIZURE AND SUBSEQUENT SEARCH OF PETITIONER’S

COMPUTER PRESENTS UNSETTLED ISSUES CONCERNING

PROBABLE CAUSE AND PARTICULARITY AND "GOOD FAITH"

RELIANCE UPON THE WARRANT THAT HAVE DIVIDED THE

STATE AND CIRCUIT COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. The Seizure Under the 2013 Warrant. . . . . . . . . . . . . . . . . . . . . . . 23

C. The 2015 Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

D. The Delay Before Searching the Computers Was Unreasonable. . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

APPENDIX: Majority and Dissenting Opinions of the Montana Supreme Court

(FILED SEPARATELY)

Table of Authorities

FEDERAL CASES

Bey v. Superintendent Greene SCI, 856 F.3d 230 (3rd Cir., 2017) . . . . . . . . . . . . . 14

Cage v. Louisiana, 498 U.S. 39 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Francis v. Franklin, 471 U.S. 307 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Galarza v. Keane , 252 F.3d 630 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Garner v. Lee, 908 F. 3d (2d Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Groh v. Ramirez, 540 U.S. 551 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

Harris v. Reed, 489 U.S. 255 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Holland v. United States, 348 U.S. 121 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . passim

In re 650 Fifth Ave. & Related Props., 830 F.3d 66(2d Cir. 2016) . . . . . . . . . . . . . . 29

In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Kentucky v. King, 563 U.S. 452 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Lee v. Kemna, 534 U.S. 362 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Marron v. United States, 275 U.S. 192 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Maryland v. Garrison, 480 U.S. 79 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30

Matter of Applications for Search Warrants for Information Associated with Target

Email Accounts/Skype Accounts, 2013 WL 4647554 (D.Kan. Aug. 27, 2013) . . . 23

Matter of The U.S.’s Application For a Search Warrant To Seize And Search Elec.

Devices From Edward Cunnius., 770 F.Supp.2d 1138 (W.D. Wash. 2011) . . . . . 22

Monk v. Zelez, 901 F.2d 885 (10th Cir.1990) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16, 17

Murray v. United States, 487 U.S. 533 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

vii

NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) . . . . . . . . . . . . . . . . . . . . 29

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) . . . . . . . . . . . . . . . . . . . 29

Ramirez v. Hatcher, 136 F.3d 1209 (9th Cir.), , cert. denied, 525 U.S. 967 (1998) and

United States v. Williams, 20 F.3d 125, 129 (5th Cir.), cert. denied, 513 U.S. 891

(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Riley v. California, 573 U.S. 373 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26

Sandstrom v. Montana, 442 U.S. 510 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Scurry v. United States, 347 F.2d 468 (D.C.Cir.1965) cert. denied , 389 U.S. 883

(1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

Sullivan v. Louisiana, 508 U.S. 275 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Brooks, 427 F.3d 1246 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 32

United States v. Burgard , 675 F.3d 1029 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 35

United States v. Burke, 633 F.3d 984 (10th Cir. 2011) . . . . . . . . . . . . . . . . . . . 32, 33

United States v. Campos, 221 F.3d 1143 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 33

United States v. Carey [172 F.3d 1268 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 32

United States v. Christie, 717 F.3d 1156 (10th Cir. 2013) . . . . . . . . . . . . . . . . . 32, 33

United States v. Clark, 638 F.3d 89 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Corcas, 419 F.3d 151 (2d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Falso, 544 F.3d 110 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Galpin, 720 F.3d 436 (2d Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. George , 975 F.2d 72 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Gordon, 290 F.3d 539 (3d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Laist , 702 F.3d 608 (11th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . 34

viii

United States v. Leon, 468 U.S. 897 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Loera, 923 F.3d 907 (10th Cir. 2019). . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Lucarz, 430 F.2d 1051 (9th Cir.1970) . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Martin, 426 F.3d 68 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Mitchell, 565 F. 3d1347 (11th Cir. 2009). . . . . . . . . . . . . . 33, 34, 35

United States v. Otero, 563 F.3d 1127 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Pratt, 915 F.3d 266 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 34, 35

United States v. Riccardi, 405 F.3d 852 (10th Cir.2005) . . . . . . . . . . . . 25, 26, 32, 33

United States v. Russian, 848 F.3d 1239 (10th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 32

United States v. Savoca, 739 F.2d 220 (6th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Scott, 83 F. Supp. 2d 187 (D. Mass. 2000) . . . . . . . . . . . . . . . . . . . 24

United States v. Townsley, 843 F.2d 1070 (8th Cir.1988), cert. denied 499 U.S. 944

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Vallimont, 378 F. App’x 972 (11th Cir. 2010) . . . . . . . . . . . . . . . . 35

United States v. Wagers, 339 F. Supp. 2d 934 (E.D. Ky. 2004) . . . . . . . . . . . . . . . . 22

United States v. Williams, 20 F.3d 125 (5th Cir.), cert. denied, 513 U.S. 891 (1994)18

Victor v. Nebraska, 511 U.S. 1 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Whitney v. Horn, 280 F.3d 240 (3d Cir. 2002) cert. denied, 537 U.S. 1195 (2003) . 14

STATE CASES

Burnett v. State, 848 So. 2d 1170 (Fla. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Chupp v. State, 509 N.E.2d 835 (Ind. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Commonwealth v. Rembiszewski, 391 Mass. 123, 461 N.E.2d 201 (1984) . . . . . . . 17

Commonwealth v. Webster, 59 Mass.(Cush) 295 (1850) . . . . . . . . . . . . . . . . . . . . . 11

Hampton v. State, 961 N.E.2d 480 (Ind. 2012) . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 18

In re Associated With the Email Account XXXXXXX@ Gmail. Com Maintained At

Premises Controlled By Google, Inc., 33 F.Supp.3d 386 (S.D. N.Y. 2014) . . . . . 22

In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). . . 19

Knight v. State, 186 So.3d 1005 (Fla. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Merkouris, 46 Cal.2d 540, 297 P.2d 999 (1956) . . . . . . . . . . . . . . . . . . . . 18

People v. Rehmeyer, 19 Cal.App.4th 1758, 24 Cal.Rptr.2d 321 (1993) . . . . . . . . . . 16

People v. Sanchez, 61 N.Y.2d 1022, 475 N.Y.S.2d 376, 463 N.E.2d 1228 (1984) . . 19

People v. Wong, 81 N.Y.2d 600, 601 N.Y.S.2d 440, 619 N.E.2d 377 (1993) . . . . . . 16

State v. Iverson, 390 Mont. 260, 411 P.3d 1284 (2018) . . . . . . . . . . . . . . . . . . . 15, 19

State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

State v. Hartman, 238 Or.App. 582, 243 P.3d 480 (2010), modified on recons.,241

Or.App. 195, 248 P.3d 448 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

State v. Johnson, 6 Neb.App. 817, 578 N.W.2d 75 (1998) . . . . . . . . . . . . . . . . . . . . 24

State v. Lucero, 214 Mont. 334, 693 P.2d 511 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 19

State v. Sanchez, 388 Mont. 262, 399 P.3d 886 (2017) . . . . . . . . . . . . . . . . . . 2, 15, 19

State v. Staley, 249 Ga. App. 207, 548 S.E.2d 26 (Ga. App. 2001) . . . . . . . . . . . . . 22

State v. Thompson, 381 Mont. 156, 364 P.3d 1229 (2015) . . . . . . . . . . . . . . . . . . . . 15

Wadman v. State, 750 So. 2d 655 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . 19

FEDERAL STATUTES

U.S. Const., amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28

U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MISCELLANEOUS

Susan W. Brenner & Barbara A. Fredericksen, Computer Searches And Seizures:

Some Unresolved Issues, 8 Mich. Telecomm. & Tech. L . Rev. 39 (2002 ) .iii, 21, 32

Julie Schmidt Chauvin, "For It Must Seem Their Guilt:" Diluting Reasonable Doubt

by Rejecting the Reasonable Hypothesis of Innocence Standard, 53 Loy. L.Rev.

217, 223 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 16

Thomas K. Clancy, Symposium: The Search and Seizure of Computers and

Electronic Evidence: The Fourth Amendment Aspects of Computer Searches and

Seizures: A Perspective and a Primer, 75 Miss. L.J. 193 (2005) . . . . . . . . . . . 31, 32

Nicole Friess, When Rummaging Goes Digital: Fourth Amendment Particularity and

Stored E-Mail Surveillance, 90 Neb. L. Rev. (2013) . . . . . . . . . . . . . . . . . . . . iii, 21

Judicial Council of California Criminal Jury Instructions, Calcrim No. 224 (2019

edition) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Orin S. Kerr, Search Warrants in an Era of Digital Evidence, 75 Miss. L. J. 85

(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

New York Criminal Jury Instructions & Model Colloquies, Circumstantial

Evidence– Entire Case (emphasis added) available at

http://www.nycourts.gov/judges/cji/1-General/CJI2d.Circumstantial_Evidence.pdf

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Irene Merker Rosenberg & Yale L. Rosenberg, "Perhaps What Ye Say is Based Only

on Conjecture"-Circumstantial Evidence, Then and Now, 31 Hous. L. Rev. 1371

(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 16

Symposium: The Search and Seizure of Computers and Electronic Evidence Search

Warrants in an Era of Digital Evidence, 75 Miss. L.J. 85 (2005-2006) . . . . . iii, 21

Raphael Winick, Searches and Seizures Of Computers and Computer Data. 8

Harvard Journal of Law & Technology 75 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 32

xii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

The Opinion of the Supreme Court of Montana has been designated for

publication. It is reported at 2019 MT 125 and at 443 P.3d 435. A copy is attached

hereto in the Appendix.

JURISDICTION

The decision of the Montana Supreme Court was filed on June 4, 2019. No

petition for rehearing was filed. The jurisdiction of this Court is invoked under 28

U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const., Amendment IV:

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized

U.S. Const., Amendment XIV:

No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

Statement of the Case

Petitioner, Patrick Neiss, was charged by Second Amended Information with

the felony offenses of Deliberate Homicide and Tampering with Evidence.1 Neiss

filed numerous pretrial motions, all of which were denied.

Just prior to trial, the State disclosed results of a forensic search of the

computers seized from Neiss’ home two and one-half years prior to trial. The State

had searched the computers pursuant to a second search warrant granted in 2015.

Neiss filed an additional motion asking for the computer evidence to be

suppressed. The state court ordered supplemental briefing and the trial was

continued. Subsequently, the court issued an order, which included a section that

denied the motion to suppress the computer evidence.

The jury trial lasted seven days. During trial, Neiss filed written objections to

several of the State’s proposed jury instructions, including the

State’s proposed circumstantial evidence instruction. The district

court overruled Neiss’ objection and gave the circumstantial evidence instruction to

the jury.

After deliberating six and one-half hours, the jury convicted Neiss on both

counts. On Count I, Deliberate Homicide, Neiss was sentenced to 100 years (with a

consecutive ten year weapons enhancement.) On Count II, Tampering with

Evidence. Neiss was sentenced to ten years to run concurrently with Count I.

. The tampering charge was based on the fact that the gun used to kill Greene was

never found.

Statement of the Facts

At 10:46 p.m., law enforcement received a 911 call from a woman who

reported she had found the body of Frank “Trey” Richey Greene on the ground

outside his home. (Trial Tr. at 354.) Greene suffered a gunshot wound to the head

and was deceased.2 (Trial Tr. at 453-54.)

The 911 caller reported seeing a vehicle frequently driven by Neiss drive by

shortly after she found Greeene’s body. (Trial Tr. 357.) Based upon the report, an

attempt to locate was issued for Neiss. (7/13/15 Tr. at 159.) Neiss was found at a

nearby gas station. He was then arrested, without incident, and transported to the

Yellowstone County Sheriff’s Office.

At the sheriff’s office, Neiss was subjected to a gunshot residue (GSR) test on

his hands and face. Later, officers decided they did not have enough evidence to

formally charge Neiss, so they released him. (7/13/15 Tr. at 56:6-12.) 3

Search Warrant for 7200 Central Avenue

Five days after the death of Greene, detectives applied for a search warrant

for 7200 Central Avenue. (Doc. 65, State’s Ex. 1). Neiss was living at 7200 Central

with his mother and seven-year old son. The application requested permission to

search for evidence related to the homicide and alsorequested permission to seize all

. An autopsy later determined Greene had suffered three gunshot wounds. (Trial

Tr. at 439.) The time of his death was disputed at trial.

. Neiss was not formally charged until August 11, 2014, seventeen months after the

homicide. (D.C. Doc. 149 at 2.)

“[c]ell phones, IPads, computers and/or otherelectronic devices and the information

contained therein[.]’” (D.C. Doc. 65, State’s Ex. 1).

The search warrant application provided details about an ongoing dispute

between Neiss and Greene. (D.C.Doc. 65, State’s Ex. 1, at SW 117-118.) Neiss and

Greene were neighbors and former friends. Neiss had a motor stolen from him and

he believed Greene had committed the theft. There had been verbal disputes and

confrontations between Neiss and Greene.

In addition, the search warrant application said shoeprints had been found

on Greene’s property. Officers said the shoeprints looked “fresh” and said that the

shoeprints led to and from the property where Neiss lived. (D.C.Doc. 65, State’s Ex.

1, at SW 119-120.) This allegation was suspect because the footprints actually

never left the victim’s property.

Execution of Search Warrant at 7200 Central Avenue

Execution of the search warrant took place at 4 a.m., six days after the

homicide. (7/13/15 Tr. at 13.) Details of the search were provided at an evidentiary

hearing. A video of the search was also played and admitted into

evidence at the hearing as State’s Exhibit 1. (7/13/15 Tr. at 22.)

Although the warrant did not contain a no-knock provision, at least twenty

law enforcement officers were involved in the search. SWAT team members were all

dressed in dark camouflage clothing with full body armor.

Some SWAT team members carried assault rifles. (7/13/15 Tr. at 15: 10-21.)

The SWAT commander drove the Yellowstone County’s BEAR or Ballistic Engineer

Armored Response vehicle to the search. (7/13/15 Tr. at 16:10- 11.)

Officers broke through the front door, and shortly after entering, they

deployed a “flash bang concussive device” at the rear of the house. (7/13/15 Tr. at

17.) The flash bang device was very loud and emitted a bright light. No law

enforcement officer had knocked on any of the doors prior to entry. (7/13/15 Tr. at

24.)

Seizure and Subsequent Search of Computers

The search warrant for 7200 Central Ave. included a sentence that

authorized the seizure of all: “Cell phones, IPads, computers and/or other electronic

devices and the information contained therein.” (Doc. 65, State’s Ex. 1., at SW 132.)

During the search in 2013, officers seized three computers from Neiss’

home. The computers were kept by the State in evidence for two and one-half

years. Then, in 2015 the State applied for a second warrant to conduct a forensic

search of the computers. (D.C. Doc. 156)

After receiving the second warrant for the computers, detectives took the

computers to FBI Agent Salacinski, whose office was located in Billings, Montana.

(Trial Tr. at 578.) Before searching the computers, Salacinski conducted what he

called a question and answer session to try to narrow the search and determine

what evidence detectives wanted him to look for on the computers. (Trial Tr. at

579.) He and the detectives came up with a list of key words for the search. (Trial

Tr. at 586.)

Salacinski also asked the detectives to narrow the date range of his search

because the warrant did not have a date range listed. (Trial Tr. at 580.) After

conducting a forensic search of the computers, Salacinski prepared a report of the

results, which included a summary of the Chrome Web history that included a

search of any of the key words provided. (Trial Tr. at 592-93, State’s Ex. 12, 12A, 12

B, 12 C)

The key words in the history for January and February of 2013 included the

terms “silencer”and “murder.” (Trial Tr. at 593-94.) The exhibit prepared by

Salacinski also included the “Uniform Resource Locator” (URL) for the searches.

(Trial Tr. at 594.) This exhibit also displayed the URL4 for a number of YouTube

videos. (Trial Tr. at 602.) Over objection, the State was allowed to play one of the

YouTube videos to the jury. (Trial Tr. at 808, State’s Ex. 51.)

The video had a demonstration of a .38 caliber gun being shot with and

without a suppressor. This video was admitted based on the testimony that the

video’s URL6 was found in the relevant Chrome web history on one of the

computers.

Additional Evidence During Trial

During trial, the State presented testimony that it had located shoeprints on

Greene’s property. (Trial Tr. at 770-788). During searches of Neiss’ home, officers

were unable to locate any shoes that had a tread pattern that matched the

. The URL for the video was:

https://www.youtube.com/watch?v=3Lsx0WAetsI

shoeprints found on Greene’s property. (Trial Tr. at 968, 970.) During crossexamination, the officer who documented the shoeprints acknowledged he was not

an expert on shoes and that he had no training on how to interpret shoeprints.

(Trial Tr. 810-811.)

Neiss was subjected to a gunshot residue (GSR) test on his hands and face.

The test was sent to the Montana State Crime Lab where it analyzed by Bahne

Klietz. (Trial Tr. at 1109-1011.) At trial, Klietz testified that when looking for GSR,

she looks at the morphology or appearance of the particles and their chemical

composition. (Trial Tr. at 1113.) Klietz testified that particles of GSR contain lead,

barium and antimony and have a spherical or melted morphology, but these items

are also present in other items such as brake pads, enamels, paints and fireworks.

(Trial Tr. at 1121, 1133)

If the three elements (lead, barium, and antimony) are found and the

morphology is also present, Klietz will conclude the particle is “characteristic” of

GSR. If a particle has only two of the three elements, or is missing the morphology,

she will conclude the particle is only “indicative” or “consistent” with GSR.

Klietz testified that GSR particles are easily transferrable. Klietz’s report

included information that Neiss was employed as a car mechanic (and so

presumably was in an environment that contained those elements). (Trial Tr. at

1136.) Klietz tested the samples taken from Neiss and she also tested a cartridge

case that came from the crime scene.

As to the sample taken from Neiss, Klietz testified she found a total of 6

particles “characteristic” of GSR. She found a total of 8 particles she classified as

“indicative” or “consistent” with GSR.

Klietz testified that many of the particles found on Neiss had a strange

morphology. (Trial Tr. at 1136:20-25.) The particles were big and flaky and did not

appear as a rounded ball. These particles also contained tin. Klietz testified that

she could not account for the strange morphology or for the presence of tin, so she

asked to test the GSR from a cartridge case located at the crime scene. (Trial Tr. at

1141.)

The cartridge case sample did not match the particles of GSR found on the

casing from the crime scene. (Trial Tr. at 1143:14-15.)

The State also presented testimony from Travis Spinder, the supervisor of

the firearm and toolmark section of the State Crime Lab. (Trial Tr. at 1148), who

testified that he made comparisons between the .40 caliber shell casings found at

the crime scene with .40 caliber shell casings found during the search of Neiss’

property, and that five casings from the crime scene and eleven casings found on

Neiss’ property “were fired from the same gun.” (Trial Tr. at 1186.)

Because the gun that fired the bullets was never found, and because

Spinder had not tested all possible guns that could have fired the bullets, Spinder’s

conclusion as to the degree of certainty of a “match” was to be limited at trial.

(9/8/15 Tr. 21; see also, D.C. Doc. 151:15-16.)

Spinder acknowledged that the comparison between shell casings is a

subjective determination.

Finally, Philip Kinsey, from the Montana State crime lab, testified as to his

review of all serology and DNA testing done at the lab. (Trial Tr. at 1060.) Items

tested included clothing, various blood stain collection kits, cigarette butts and two

.40 caliber casings taken from the crime scene. (Trial Tr. at 1068).

There was no DNA evidence linking Neiss to the crime scene. (Trial Tr. at

1060-1086.) Neiss was also excluded as a contributor of the DNA found on the

cigarette butts. (Trial Tr. at 1080.) A small amount of DNA was detected on one of

the shell casings. However, the control sample sent with the extract was

contaminated. (Trial Tr. at 1082.) Therefore, the DNA that was found was rendered

worthless and the results of any tests could not be used. (Trial Tr. at 1082-1083.)

The Court instructed the jury in accordance with Montana Pattern Jury

Instructions Criminal5 1-117(a), i.e., “When circumstantial evidence is susceptible

to two interpretations, one that supports guilt and the other that supports

innocence, the jury determines which is most reasonable.”

Neiss filed a written objection to the use of this instruction at his trial, but

his objection was overruled. (D.C. Doc. 238, Trial Tr. at 1352-53).

The Court also instructed the jury on reasonable doubt in accordance with

Montana Pattern Jury Instructions Criminal 1-104, i.e.

The State of Montana has the burden of proving the guilt of the

Defendant beyond a reasonable doubt. Proof beyond a reasonable

. Montana Jury Instructions may be found at

https://courts.mt.gov/courts/supreme/boards/crim_jury#81694259-2009-criminal-jur

y-instruction

doubt is proof of such a convincing character that a reasonable person

would rely and act upon it in the most important of his or her own

affairs. Beyond a reasonable doubt does not mean beyond any doubt or

beyond a shadow of a doubt.

Verdict and Appeal

Petitioner was convicted of evidence tampering and deliberate homicide. On

appeal, he raised three issues: (1) whether trial court erred in denying his motion to

suppress evidence seized pursuant to a search warrant that did not explicitly

authorize a no-knock entry; (2) whether the court properly denied Petitioner’s

motion to suppress evidence obtained through a forensic search of his computer; and

(3) whether the jury instruction on circumstantial evidence diluted the presumption

of innocence and undermined the constitutional requirement of proof beyond a

reasonable doubt.

A divided Montana Supreme Court affirmed. The majority (1) overruled prior

precedent insofar as it required investigating officers to obtain authorization from a

judge to execute a no-knock entry, and held officers may execute a no-knock entry

where they have a reasonable suspicion of exigent circumstances justifying it; (2)

held officers may seize an electronic device pursuant to a warrant and may

subsequently search the property pursuant to a search warrant even though there

was no nexus with the crime charged and a general rummaging search was

employed; and (3) found that the jury instructions in this case were proper under

prior Montana Supreme Court precedent.

Justice Gustafson dissented, in an opinion joined by Justice Dirk Sandefur,

with respect to the seizure and subsequent search of the Petitioner’s computer. She

found that the 2013 search warrant lacked particularity, was overbroad, and offered

no probable cause to justify the seizure of the computers; the 2015 search warrant

did not validly authorize the search of the computers because it was invalid on its

face and lacked particularity; and the two-year delay in searching the computers

after their seizure was unreasonable.

REASONS FOR GRANTING THE WRIT

I. ADVISING A JURY IN A CIRCUMSTANTIAL EVIDENCE CASE THAT

“WHEN CIRCUMSTANTIAL EVIDENCE IS SUSCEPTIBLE TO TWO

INTERPRETATIONS, ONE THAT SUPPORTS GUILT AND THE OTHER

THAT SUPPORTS INNOCENCE, THE JURY DETERMINES WHICH IS

MOST REASONABLE” DILUTES THE STATE'S BURDEN OF PROOF AND

COMPROMISES THE RIGHT TO BE PRESUMED INNOCENT

A special instruction on circumstantial evidence– the so-called Webster6

charge – was deemed required by the common law where a case was entirely

circumstantial, courts fearing that it might result in the conviction of the innocent.

See Irene Merker Rosenberg & Yale L. Rosenberg, “Perhaps What Ye Say is Based

Only on Conjecture”-Circumstantial Evidence, Then and Now, 31 Hous. L. Rev.

1371, 1390 (1995) (“Rosenberg”); Julie Schmidt Chauvin, “For It Must Seem Their

Guilt:” Diluting Reasonable Doubt by Rejecting the Reasonable Hypothesis of

Innocence Standard, 53 Loy. L.Rev. 217, 223 (2007) (Chauvin).

Although this Court has held that such an instruction is not required in

federal courts, so long as “the jury is properly instructed on the standards for

. Commonwealth v. Webster, 59 Mass.(Cush) 295 (1850).

reasonable doubt,” Holland v. United States, 348 U.S. 121, 139, 140 (1954), many

state courts still give such an instruction. See Hampton v. State, 961 N.E.2d 480,

485, 486 (Ind. 2012) (collecting authorities and holding that “discarding the

‘reasonable theory of innocence’ jury instruction is unwise.”); Rosenberg, at 14001401. The question here is whether the language of the instruction, quoted above,

dilutes the State’s burden of proof and compromise Petitioner’s right to be presumed

innocent. Cf. Sandstrom v. Montana, 442 U.S. 510 (1979); Mullaney v. Wilbur, 421

U. S. 684 (1975); In re Winship, 397 U.S. 358 (1970).

Holland, a prosecution for evasion of income tax based upon a net worth

theory, did not answer the question. Although the Court said “the better rule is

that, where the jury is properly instructed on the standards for reasonable doubt,

such an additional instruction on circumstantial evidence is confusing and

incorrect,” 348 U.S. at 139 (emphasis added), it did not say that a state court could

not give such an instruction let alone state what language would be permissible.

Yet, it also indicated that an instruction on reasonable doubt “as something the jury

would act upon would seem to create confusion.” Id. at 141.

Nonetheless, state courts adopting its ruling, have ignored that the “Holland

Court prefaced its rejection of the reasonable hypothesis of innocence standard with

a lengthy discussion of the risk inherent in the use of circumstantial evidence in net

worth cases, including a condition that the jury be properly instructed on the

standard of beyond a reasonable doubt.” Chauvin, at 226.

As Chauvin states, “Precautions regarding the use of circumstantial

evidence, such as it being ‘so fraught with danger for the innocent that the courts

must closely scrutinize its use,’ demonstrate that even the Holland Court recognized

the inherent risk in the use of this type of evidence.” Ibid. (quoting Holland, at 125).

Chauvin and Rosenberg both note that it is unclear whether these caveats

apply to all circumstantial evidence cases or only in net worth prosecutions of the

type in Holland. They note that the Court entertained both arguments: (1) that the

caveats do not apply across the board, and (2) that if the rejection of the cautionary

jury instruction is to be applied broadly, so are the warnings regarding the use of

circumstantial evidence. Rosenberg, at 1393-96; Chauvin, at 226 n. 45.

For this reason alone, some clarification is in order.

In any event, under this Court’s precedents, it must be determined “whether

the challenged jury instruction had the effect of relieving the State of the burden of

proof . . . .” Sandstrom, 442 U.S. at 521. As reaffirmed in Sandstrom, the instruction

must be analyzed under the “‘Due Process Clause[, which] protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.’” Id. at 520 (quoting In

re Winship, 397 U. S. 358, 364 (1970)) and his Fifth Amendment rights such as

presumption of innocence and not having to present evidence or explain the

inference left hanging by the Montana circumstantial evidence charge.

An instruction violates due process where there is a reasonable likelihood

that jurors would interpret it to allow conviction based on any “degree of proof

below” the reasonable doubt standard. See Victor v. Nebraska, 511 U.S. 1, 6 (1994);

Cage v. Louisiana, 498 U.S. 39, 41 (1991) (per curiam).

The Montana circumstantial evidence jury instruction strongly suggests that

defendant has to prove innocence, namely that his “reasonable inference” is “more

reasonable” than the prosecution’s, by itself, and surely when coupled with the

erroneous reasonable doubt charge of “convincing character” suggests a higher

standard of doubt by shifting the burden to defendant.

This is true not only in cases of misidentification, but also where a correct

definition is in some way muddled or distorted by additional instruction language.

See, e.g., Whitney v. Horn, 280 F.3d 240, 256 (3d Cir. 2002) (“Neither the correct

statements of law within the instruction, nor the statement immediately after the

instruction, completely negated or explained the absolutely incorrect statement of

law in the context of the rest of the instructions.”) cert. denied, 537 U.S. 1195

(2003); Bey v. Superintendent Greene SCI, 856 F.3d 230 (3rd Cir., 2017); United

States v. Gordon, 290 F.3d 539 (3d Cir. 2002). This is because “[a] reviewing court

has no way of knowing which of the two irreconcilable instructions the jurors

applied in reaching their verdict.” Francis v. Franklin, 471 U.S. 307, 322 (1985).

While judges are afforded substantial discretion in how to instruct criminal

juries, they cannot exercise such discretion in a way that distorts the controlling

legal principles

There is little doubt that the instruction here fails to pass constitutional

muster. As Justice McKinnon7 observed in State v. Sanchez, 388 Mont. 262, 399

P.3d 886, 890-91 (2017), concurring in the judgment because “the direct evidence of

guilt is strong and it was unnecessary for the jury to rely on circumstantial

evidence,”:

In my view, the “most reasonable” instruction is inconsistent with the

presumption of innocence to which a defendant is entitled. Were this

case based entirely on circumstantial evidence, the jury would have

been given conflicting jury instructions that it should adopt the “most

reasonable” interpretation of the circumstantial evidence while also

being instructed the State's burden was to prove guilt beyond a

reasonable doubt and the defendant was entitled throughout trial to a

presumption of innocence. The “most reasonable” instruction

mistakenly draws on sufficiency precedent and, in doing so, injects a

comparative measure — “most” — which potentially compromises the

reasonable doubt standard.

I would endorse a circumstantial evidence instruction which could be

relied upon to produce a result consistent with the State's burden of

proving guilt and the defendant's presumption of innocence. The

instruction given, “[w]hen circumstantial evidence is susceptible of two

interpretations, one that supports guilt and one that supports

innocence, the jury determines which is most reasonable,” directed the

jurors to compare interpretations and choose the interpretation “most”

reasonable. While a jury must evaluate interpretations and assess

whether they are reasonable, that interpretation must still be

measured against the State’s burden of proof beyond a reasonable

doubt and a defendant's presumption of innocence. The “most

reasonable” instruction, due to its origins in sufficiency precedent,

obscures the distinction between evaluating and assessing the

evidence with measuring that evidence against the State’s burden of

proof. Potentially, the “most reasonable” instruction, though not here,

could undermine the reliability of a conviction which is based entirely

. Justice McKinnon wrote the majority opinion in this case, deeming herself bound by

the majority opinion in Sanchez and State v. Iverson, 390 Mont. 260, 411 P.3d 1284 (2018). See

State v. Thompson, 381 Mont. 156, 161, 364 P.3d 1229, 1233 (2015) (discussing stare decisis in

Montana). She did overrule a prior decision concerning the no-knock warrant, but that was

because a subsequent decision of this Court had rejected the prior decision’s analysis.

on circumstantial evidence.

This analysis is correct. The standard enunciated by the Montana Supreme

Court is the one applied on appellate review of a jury verdict, not an instruction to

the jury. See People v. Wong, 81 N.Y.2d 600, 608, 601 N.Y.S.2d 440, 444, 619 N.E.2d

377, 381 (1993); People v. Rehmeyer, 19 Cal.App.4th 1758, 1766, 24 Cal.Rptr.2d 321,

324 (1993) ; see Rosenberg at 1418-19; but see Knight v. State, 186 So.3d 1005 (Fla.

2016) (reasonable hypothesis of innocence instruction not required, but applied on

appellate review of sufficiency).

Moreover, in this case the deficiency was not cured by the “reasonable doubt”

instruction. See Chauvin, at 231-34. It defined reasonable doubt as proof of “such a

convincing character that a reasonable person would rely and act upon it in the

most important of his or her own affairs,” language that this Court in Holland

found “would seem to create confusion.” 348 U.S. at 141.

In Scurry v. United States, 347 F.2d 468, 470 (D.C. Cir. 1965), cert. denied,

389 U.S. 883 (1967), which had in turn relied on Holland, Judge J. Skelly Wright,

observed:

A prudent person called upon to act in an important business or family

matter would certainly gravely weigh the often neatly balanced

considerations and risks trending in both directions. But, in making

and acting on a judgment after so doing, such a person would not

necessarily be convinced beyond a reasonable doubt that he had made

the right judgment. Human experience, unfortunately, is to the

contrary.

This analysis was followed in Monk v. Zelez, 901 F.2d 885 (10th Cir 1990),

where the Tenth Circuit ultimately granted a new trial before a military tribunal.

The Court faulted both the use of the word “substantial” in the reasonable doubt

charge and the use of language couched in terms of “willingness to act.” Id. at 890

(citing Holland). Even more significantly, Monk was one of the circuit court

decisions that the Supreme Court cited with approval in Cage v. Louisiana, 498

U.S. at 41 fn *.

Several state courts agree. See, e.g., Commonwealth v. Rembiszewski, 391

Mass. 123, 131, 461 N.E.2d 201, 207 (1984) (“Equating the proof that the jurors

might have wanted in making decisions with respect to their personal affairs with

the degree of certitude necessary to convict the defendant tended to reduce the

standard of proof from the criminal standard of proof beyond a reasonable doubt to

the standard in civil cases, proof by a fair preponderance of the evidence.”); State v.

Francis, 151 Vt. 296, 303-304, 561 A.2d 392, 396 (1989) (“We al so believe it

trivializes the proof-beyond-a-reasonable-doubt standard to compare it to decisions

of personal importance in a juror's life. Making a decision about the guilt of an

accused is dissimilar to deciding important personal matters. The latter often

involves the balancing of advantages and disadvantages and the decision is reached

upon a mere tip of the balance.... If people really did make important personal

decisions only when convinced beyond a reasonable doubt as to their correctness,

human activity would evidence far more inertia than it does.”)

There is contrary authority, see, e.g., Ramirez v. Hatcher, 136 F.3d 1209 (9th

Cir.), cert. denied, 525 U.S. 967 (1998) and United States v. Williams, 20 F.3d 125,

129 (5th Cir.), cert. denied, 513 U.S. 891 (1994), but all this shows is that the issue

is one for this Court to resolve.

Moreover, in those states that require a circumstantial evidence instruction,

there is substantial debate concerning the appropriate language. See Hampton, at

487, 490 et seq.

In Hampton, following a careful review of the authorities, the Court said “the

jury should be instructed as follows: In determining whether the guilt of the accused

is proven beyond a reasonable doubt, you should require that the proof be so

conclusive and sure as to exclude every reasonable theory of innocence.” 961 N.E.2d

at 491 (emphasis in original).

California requires a similar instruction:

[B]efore you may rely on circumstantial evidence to find the defendant

guilty, you must be convinced that the only reasonable conclusion

supported by the circumstantial evidence is that the defendant is

guilty. If you can draw two or more reasonable conclusions from the

circumstantial evidence, and one of those reasonable conclusions points

to innocence and another to guilt, you must accept the one that points to

innocence.

Judicial Council of California Criminal Jury Instructions, Calcrim No. 224 (2019

edition) (emphasis added); see People v. Merkouris, 46 Cal.2d 540, 561-562, 297 P.2d

999, 1013-14 (1956) (instruction similar to that given here is erroneous).

New York’s instruction is as follows:

[I]t must appear that the inference of guilt is the only one that can

fairly and reasonably be drawn from the facts, and that the evidence

excludes beyond a reasonable doubt every reasonable hypothesis of

innocence.

If there is a reasonable hypothesis from the proven facts consistent with

the defendant's innocence, then you must find the defendant not guilty.

New York Criminal Jury Instructions & Model Colloquies, Circumstantial

Evidence– Entire Case (emphasis added) available at

http://www.nycourts.gov/judges/cji/1-General/CJI2d.Circumstantial_Evidence.pdf.

See People v. Sanchez, 61 N.Y.2d 1022, 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228

(1984) (“ the jury should be instructed in substance that it must appear that the

inference of guilt is the only one that can fairly and reasonably be drawn from the

facts, and that the evidence excludes beyond a reasonable

doubt every reasonable hypothesis of innocence.”)8

The problem arises even in states where the circumstantial evidence

instruction has become discretionary. See, e.g., In re Standard Jury Instructions in

Criminal Cases, 431 So.2d 594 (Fla.1981) (instruction eliminated in standard

instructions; instruction discretionary).

In Wadman v. State, 750 So. 2d 655 (Fla. 4th DCA 1999), the defendant was

charged with aggravated assault with a firearm and the trial court advised the jury,

as follows: “Let me tell you because the definition of firearm does not involve proof

that a gun is loaded or operable, the Defendant's use of a firearm during a crime

can be established even if the gun is not recovered and received into evidence.

Circumstantial evidence can be sufficient to establish the use of a firearm.”

The Court of Appeal reversed, observing, “The problem with the instruction

. At one time, Montana required an instruction “that if the circumstantial evidence was

susceptible to two reasonable interpretations, one of which points to the defendant's guilt and the

other to his innocence, it is the duty of the jury to adopt the interpretation which points to the

defendant's innocence and reject that interpretation which points to his guilt.” State v. Lucero,

214 Mont. 334, 339, 693 P.2d 511, 514 (1984). It adopted the current formulation in State v.

Iverson, 390 Mont. 260, 411 P.3d 1284 (2018) and State v. Sanchez, 388 Mont. 262, 399 P.3d

886 (2017),

in this case is that it diminishes the state's burden of proof with respect to one

element of the crime charged. . . . The problem is that the instruction uses the term

‘circumstantial evidence’ without defining it or explaining how the jury is to view

such evidence. Common definitions of ‘circumstantial’ are ‘[o]f no primary

significance,’ ‘incidental,’ ‘inessential,’ and ‘secondary.’ . . . the instruction's

undefined use of the term ‘circumstantial evidence’ could have led the jury to

believe that one element of the crime did not need to be established beyond a

reasonable doubt, but only by ‘secondary’ or ‘incidental’ evidence.’”750 So.2d at 65758.

This case is the perfect vehicle to resolve the issues. The circumstantial proof

was not overwhelming. Among other things, there was no DNA evidence linking the

Petitioner to the crime and the gunshot residue test excluded the Petitioner because

he did not have barium and the morphology, so his GSR did not match the crime

scene. More important, a charge error that dilutes the dilutes the State’s burden of

proof and compromises the right to be presumed innocent is not subject to harmless

error analysis. See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).

II. THE SEIZURE AND SUBSEQUENT SEARCH OF PETITIONER’S

COMPUTER PRESENTS UNSETTLED ISSUES CONCERNING PROBABLE

CAUSE AND PARTICULARITY AND "GOOD FAITH" RELIANCE UPON

THE WARRANT THAT HAVE DIVIDED THE STATE AND CIRCUIT

COURTS

A. Introduction

As Courts and commentators have noted, Fourth Amendment issues

concerning seizures and searches of digital equipment present questions that are

not easily susceptible of analysis under traditional precedent. See, e.g., Nicole

Friess, When Rummaging Goes Digital: Fourth Amendment Particularity and

Stored E-Mail Surveillance, 90 Neb. L. Rev. (2013); Symposium: The Search and

Seizure of Computers and Electronic Evidence Search Warrants in an Era of Digital

Evidence, 75 Miss. L.J. 85 (2005-2006); Susan W. Brenner & Barbara A.

Fredericksen, Computer Searches And Seizures: Some Unresolved Issues, 8 Mich.

Telecomm. & Tech. L . Rev. 39 (2002 ); cf. Riley v. California, 573 U.S. 373 (2014) (a

warrant is required to search a mobile phone; search incident to arrest rule

inapplicable).

Professor Orin S. Kerr, in an article commissioned by the National Center for

Justice and supported by a grant from the Department of Justice:

contends that the legal rules regulating the search warrant process

must be revised in light of the demands of digital evidence collection.

Existing rules are premised on the one-step process of traditional

searches and seizures: the police obtain a warrant to enter the place to

be searched and retrieve the property named in the warrant. Computer

technologies tend to bifurcate the process into two steps: the police first

execute a physical search to seize computer hardware, and then later

execute a second electronic search to obtain the data from the seized

computer storage device. The failure of the law to account for the

two-stage process of computer searches and seizures has caused a

great deal of doctrinal confusion, making it difficult for the law to

regulate the warrant process effectively.

Orin S. Kerr, Search Warrants in an Era of Digital Evidence, 75 Miss. L. J. 85

(2005)

Many of the decisions in the Federal Courts of Appeals and State appellate

courts concern child pornography cases, in which computer use is well-known. Yet,

even in those cases, these courts struggle over probable cause determinations9

Indeed, the United States Magistrate Judges, who are in the front line of the

debate, have issued conflicting decisions on applications for warrants for digital

evidence. Compare In re Associated With the Email Account XXXXXXX@ Gmail.

Com Maintained At Premises Controlled By Google, Inc., 33 F.Supp.3d 386 (S.D.

N.Y. 2014) (granting warrant) with In the Matter of The U.S.'s Application For a

Compare, e.g, Burnett v. State, 848 So. 2d 1170, 1173-75 (Fla. App. 2003) (no probable

cause to support warrant to search computer for evidence of child pornography based on initial

complaint that suspect had made lewd videotape of two children); State v. Staley, 249 Ga. App.

207, 548 S.E.2d 26, 28-29 (Ga. App. 2001) (although police had probable cause to believe that

Staley had molested a specific child, that he had worked as a computer analyst, that he had been

previously convicted of molesting a child and taking pictures of that child, and that the affiant

detailed that pedophiles stored information relating to having sex with children, there was no

nexus between either the crime of molesting that specific child or the propensities of child sex

offenders and search of computer in Staley's apartment) with United States v. Martin, 426 F.3d

68 (2d Cir. 2005) (2-1 decision) (finding probable cause based on subscription to website that's

essential purpose was to trade child pornography); United States v. Wagers, 339 F. Supp. 2d 934

(E.D. Ky. 2004) (probable cause existed that suspect's home computer contained child

pornography based on membership in child pornography website). But see United States v.

Corcas, 419 F.3d 151 (2d Cir. 2005) (although affirming denial of motion to suppress, the panel

did so based on Martin finding probable cause stemming from membership in child pornography

website, while criticizing that precedent as unsound).

Search Warrant To Seize And Search Elec. Devices From Edward Cunnius., 770

F.Supp.2d 1138 (W.D. Wash. 2011) (declining warrant); In the Matter of the Search

of Information Associated with [redacted]@ mac. com that is Stored at Premises

Controlled by Apple, Inc., 13 F.Supp.3d 145 (D.D.C. April 7, 2014) (same); In the

Matter of Applications for Search Warrants for Information Associated with Target

Email Accounts/Skype Accounts, 2013 WL 4647554 (D.Kan. Aug. 27, 2013).

As Justice Gustafson observed in her dissent below in this case, the 2013

search warrant lacked particularity, was overbroad, and offered no probable cause

to justify the seizure of the computers; the 2015 search warrant did not validly

authorize the search of the computers because it was invalid on its face and lacked

particularity; and the two-year delay in searching the computers after their seizure

was unreasonable.

Each of these issues will be discussed below, including any purported reliance

on “good faith,” and show that this case is an ideal vehicle to resolve the issues.

B. The Seizure Under the 2013 Warrant

The first warrant application did not provide probable cause to seize all

“Cell phone, IPads, computers and/or other electronic devices and the information

contained therein[]” from Petitioner’s home. (D.C.Doc. 65, State’s Ex. 1.,) It does not

contain any facts that would justify the seizure of computers from Petitioner’s

home. The application has no facts linking the use of a computer to the homicide.

The application has no facts linking Petitioner to the use of a computer.

Importantly, this was not a computer crime. Cf. United States v. Scott, 83 F.

Supp. 2d 187, 197 (D. Mass. 2000) (it is reasonable to suppose that someone

allegedly engaged in bank fraud and producing false securities on his computer

would have records of the bank fraud and false securities on that computer). It is

not reasonable to assume that a computer has any nexus with a homicide

investigation.

Even if the application provided probable cause to arrest Petitioner, the

application did not have any facts that supported the seizure of all computers found

in the home. See, e.g. State v. Johnson, 6 Neb.App. 817, 578 N.W.2d 75, 83 (1998)

(“if mere probable cause to arrest a suspect also established probable cause to

search the suspect’s home, there would be no reason to distinguish search warrants

from arrest warrants.”)(citing United States v. Lucarz, 430 F.2d 1051 (9th

Cir.1970)); accord United States v. Savoca, 739 F.2d 220, 224-25 (6th Cir.1984))

(“The fact that there is probable cause to arrest a person for a crime does not

automatically give police probable cause to search his residence or other area in

which he has been observed for evidence of that crime.”)

The application did not have any information that would support a

conclusion Petitioner even owned a home computer, let alone information that if he

did, the computer would then contain evidence of the homicide. Certainly, there was

no evidence to support a finding that all computers in the home, no matter who they

belonged to, would contain evidence and therefore be subject to seizure.

The conclusion that officers did not have probable cause to seize the

computers is best supported by the State’s own actions in this case. The State

seized the computers in 2013, but did nothing to search the computers until two

and one-half years later. At that time, the State candidly admitted it did not know

what would be on the computers, “if anything.” (9/14/15 Tr. at 91:2-4.) Then, when

the State sent the computers to be analyzed, they were not sent to some far off

computer lab, they were sent across town. The fact that the State did nothing with

the computers for two and one-half years despite the fact that it would have been

very easy for them to do so is the best evidence the State did not have probable

cause to seize the computers in the first place.

The Fourth Amendment requires not only that warrants be supported by

probable cause, but that they “particularly describ[e] the place to be searched, and

the persons or things to be seized.” U.S. Const. amend. IV. The particularity

requirement “ensures that the search will be carefully tailored to its justifications,

and will not take on the character of the wide-ranging exploratory searches the

Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). See

also Marron v. United States, 275 U.S. 192, 196 (1927).

The modern development of the personal computer and its ability to store

and intermingle a huge array of one's personal papers in a single place increases

law enforcement's ability to conduct a wide-ranging search into a person's private

affairs, and accordingly makes the particularity requirement that much more

important. See, e.g. United States v. Riccardi, 405 F.3d 852, 863 (10th Cir.2005)

(warrant authorizing general search of computer invalid as it permitted officers to

search anything “from child pornography to tax returns to private correspondence”);

Because of this “warrants for computer searches must affirmatively limit the search

to evidence of specific federal crimes or specific types of material.” Id. at 862.

Heightened scrutiny of particularity and breadth take on added significance

with cell phones and personal computers. This Court recognized as much in Riley,

holding that searches of cell phones are fraught with these issues. These same

privacy issues which are protected by scrutiny of particularity and breadth are the

same for computers for the cell phone is a mini-computer that is carried around by

almost every person in this country.10

The good faith exception to the exclusionary rule cannot save the search. The

exception does not apply to “evidence seized ‘in objectively reasonable reliance on’ a

warrant issued by a detached and neutral magistrate judge, even where the

warrant is subsequently deemed invalid.” United States v. Falso, 544 F.3d 110, 125

. Drastic technological improvements to cell phones have been made since Riley in 2014

and the storage capacity of computers including the advent of storage in the “cloud.” The Court

in Riley identified several quantitative differences that underscore the decision to afford cell

phones and other “digital containers” greater Fourth Amendment protection than their physical

analogs. First, the “immense storage capacity” of cellphones allows “millions of pages of text,

thousands of pictures, or hundreds of videos” to be stored and transported. Second, cellphones

facilitate the collection and aggregation “in one place of many distinct types of information,” as

well as data dating back “to the purchase of the phone, or even earlier.’ Chief Justice Roberts

explained, “there is an element of pervasiveness that characterizes cell phones but not physical

records.”

But it was not just the quantity of records at issue in Riley that justified increased Fourth

Amendment protection, it was also a qualitative difference in the digital records created and

stored on cell phones. This data includes “private information never found in a home in any

form.”

(2d Cir. 2008) (quoting United States v. Leon, 468 U.S. 897, 922 (1984)). “The

burden is on the government to demonstrate the objective reasonableness of the

officers' good faith reliance on an invalidated warrant.” United States v. Clark, 638

F.3d 89, 100 (2d Cir. 2011).

This Court has identified four circumstances where an exception to the

exclusionary rule would not apply: (1) where the issuing magistrate has been

knowingly misled; (2) where the issuing magistrate wholly abandoned his or her

judicial role; (3) where the application is so lacking in indicia of probable cause as to

render reliance upon it unreasonable; and (4) where the warrant is so facially

deficient that reliance upon it is unreasonable. Leon, 468 U.S. at 923. The critical

question is “whether a reasonably well trained officer would have known that the

search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922

n.23.

In this instance, there can be little doubt that exceptions (3) and (4) can be

applicable. The Montana Supreme Court majority apparently thought so,

essentially predicating its holding on the theory that the subsequent warrant cured

any deficiency.

Other courts have recognized that “if the original seizure was illegal, the

subsequent warrant would not cure the defect.” Chupp v. State, 509 N.E.2d 835,

838 (Ind. 1987); see also State v. Hartman, 238 Or.App. 582, 592, 243 P.3d 480, 486

(2010), modified on recons.,241 Or.App. 195, 248 P.3d 448 (2011)(rejecting

warrant-based inevitable discovery argument where, once information obtained as a

result of original unlawful seizure of evidence was excised from application for

subsequent warrant to seize the same evidence, the warrant application was

insufficient to establish probable cause); cf. Murray v. United States, 487 U.S. 533,

542 (1988) (remanding for independent source hearing); United States v. Townsley,

843 F.2d 1070, 1079 (8th Cir.1988), cert. denied 499 U.S. 944 (1989) (“When none of

the evidence obtained in an initial illegal entry or seizure is used to obtain the

warrant authorizing the subsequent entry or seizure, the valid warrant purges the

evidence of any taint arising from the prior illegal activity.”).

Even if the subsequent warrant could purge the taint, such a warrant would

have to be obtained promptly. As discussed below, there was a 2 ½ delay. Given

that delay, the subsequent warrant was not valid and thus could not cure the taint.

C. The 2015 Warrant

Even if the first warrant did validly authorize the seizure of

all computers from the home, the second warrant, obtained two and one-half years

after the computers were originally seized was invalid on its face. The second

warrant had no temporal or substantive limitations and it purportedly authorized

the search and seizure of an unlimited amount of data.

The Fourth Amendment requires a search warrant “particularly [to]

describ[e] the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. “Such particularity is necessarily tied to the Amendment’s

probable cause requirement.” 11 In re 650 Fifth Ave. & Related Props., 830 F.3d 66,

99 (2d Cir. 2016).

“By limiting the authorization to search to the specific areas and things for

which there is probable cause to search, the requirement ensures that the search

will be carefully tailored to its justifications, and will not take on the character of

. At one point in the majority opinion below, the Court stated that

Petitioner had not sufficiently raised the argument in the trial court and it was

waived. (Slip Op., p. 27). It said Petitioner’s argument “that the warrant was not

‘specifically particularized as to the reason to search’ conflates probable cause with

particularity because only probable cause relates to the reason for a search. . . . .

Whether a warrant lacks particularity and whether probable cause supports it are

distinct issues. ” (Slip Op., p 27 n.2).

Yet, later in the opinion, the majority said “Essential to both constitutional

provisions and § 46-5-221, MCA, is the particularity requirement. A search warrant

must particularly describe which items are to be seized.” (Slip. Op. p. 30). It then

discussed and analyzed the question under the rubric of probable cause.

As shown above, probable cause and particularity are not distinct issues, so

the discussion on the merits was not an alternative holding and there is no

adequate and independent state ground. See Garner v. Lee, 908 F. 3d 845, 859 (2d

Cir. 2018); Galarza v. Keane , 252 F.3d 630, 637 (2d Cir. 2001) (Sotomayor, J. )

(noting that a state court’s reliance on a state procedural bar must be

"unambiguous"); cf. Harris v. Reed, 489 U.S. 255 (1989).

In any event, a state procedural rule will not bar enforcement of a federal

right if, although independent and adequate, the rule is applied in an “exorbitant”

manner. See Lee v. Kemna, 534 U.S. 362, 376 (2002). As the dissenting opinion in

the Montana Supreme Court shows, this is such a case. “Novelty in procedural

requirements cannot be permitted to thwart review in this Court applied for by

those who, in justified reliance upon prior decisions, seek vindication in state courts

of their federal constitutional rights.” NAACP v. Alabama ex rel. Patterson, 357

U.S. 449, 457–458 (1958). Indeed, again as the dissenters suggested below, the

novel state procedural requirement appears to have imposed for the purpose of

evading compliance with a federal standard. See, e.g., NAACP v. Alabama ex rel.

Flowers, 377 U.S. 288, 293–302 (1964).

the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland

v. Garrison, 480 U.S. 79, 84 (1987); see also Kentucky v. King, 563 U.S. 452, 459

(2011).

There are three elements necessary to satisfy this requirement. “First, a

warrant must identify the specific offense for which the police have established

probable cause. Second, a warrant must describe the place to be searched. Third,

the warrant must specify the items to be seized by their relation to designated

crimes.” United States v. Galpin, 720 F.3d 436, 445-46 (2d Cir. 2013) (internal

quotation marks, citations, and footnote omitted).

These elements “must be satisfied ‘in the warrant, not in the supporting

documents.’” In re 650 Fifth Ave, 830 F.3d at 99 (quoting Groh v. Ramirez, 540 U.S.

551, 557 (2004)). Where necessary, “a court may construe a warrant with reference

to a supporting application or affidavit,” but it can do so only if the warrant “uses

appropriate words of incorporation.” Groh, 540 U.S. at 557-58.

Thus, for a warrant to meet the particularity requirement, it must identify

the alleged crime for which evidence is sought. See United States v. George , 975

F.2d 72, 76 (2d Cir. 1992) (observing that warrant lacked particularity where

“[n]othing on the face of the warrant tells the searching officers for what crime the

search is being undertaken”); United States v. Galpin , 720 F.3d 436, 447 (2d Cir.

2013) (holding that search warrant generally authorizing police officers to search

defendant's physical property and electronic equipment for evidence of “NYS Penal

Law and or Federal Statutes” violated the particularity requirement (internal

quotation marks omitted)) (cited in In re 650 Fifth Ave., 830 F.3d at 100).

Here, FBI Agent Salacinski was the one who limited the search of the

computers, not the issuing magistrate. It was Salacinski who requested a time limit

and who worked with officers to develop a key word search to narrow his search.

The fact that Salacinski imposed his own limits when searching the computers does

not save the warrant because the restrictions must come from a neutral magistrate,

not from the investigating officer. See e.g., Katz v. United States, 389 U.S. 347, 356

(1967).

The second warrant also erroneously authorized a search of computers found

in New Jersey, not Yellowstone County, MT. The application for the warrant was

not incorporated into the warrant and, in accordance with Groh, cannot cure the

warrant’s facial invalidity.

Even if it had been, the application did not provide probable cause to perform

an unlimited search of all data that could be found on the computers seized from

Petitioner’s home.

The majority below made an analogy to a file cabinet, quoting Thomas K.

Clancy, Symposium: The Search and Seizure of Computers and Electronic Evidence:

The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective

and a Primer, 75 Miss. L.J. 193, 197-98 (2005). But Professor Clancy later observed

that this was the position of some courts and others had rejected it:

Some authorities reject the container analogy and view searches for

data on a computer much differently than paper document searches.

The leading case, United States v. Carey [172 F.3d 1268 (10th Cir.

1999)] espouses the view that law enforcement officers must take a

“special approach” to the search of data contained on computers and

that the “file cabinet analogy may be inadequate.” This position is

premised on the fact that “electronic storage is likely to contain a

greater quantity and variety of information than any previous storage

method.

Id. at 204.12

Indeed, in addition to Carey, the Tenth Circuit has extensively discussed

searches of digital files. See, e.g., United States v. Loera, 923 F.3d 907 (10th Cir.

2019); United States v. Russian, 848 F.3d 1239, 1245 (10th Cir. 2017); United States

v. Christie, 717 F.3d 1156, 1164 (10th Cir. 2013); United States v. Burke, 633 F.3d

984, 992 (10th Cir. 2011); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.

2009); United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005); United States

v. Riccardi, 405 F.3d 852, 861 (10th Cir. 2005); United States v. Campos, 221 F.3d

. Clancy would reject the “special approach” and follow the container analogy. 75 Miss.

L. J. at 208. However, other commentators would follow the Tenth Circuit’s approach. See

Raphael Winick, Searches and Seizures Of Computers and Computer Data. 8 Harvard Journal of

Law & Technology 75, 110-111 (1994) (“Application of the container rule to computer memory

devices essentially permits law enforcement officers to rummage through any and all information

stored on a computer disk whenever the officers obtain possession of the physical computer

hardware. However, Fourth Amendment law has long since abandoned the concept that physical

possession of property by law enforcement officers makes any subsequent search

constitutional.”); Susan W. Brenner & Barbara A. Fredericksen, Computer Searches And

Seizures: Some Unresolved Issues, 8 Mich. Telecomm. & Tech. L . Rev. 39, 60-63, 81-82 (2002)

(setting forth some of the differences between searches of “paper documents and

computer-generated evidence” and maintaining that courts should impose restrictions on

computer searches such as limiting the sear ch by file types, by requiring a second warrant for

intermingled files, and by imposing time frames for conducting the search.)

1143, 1148 (10th Cir. 2000).13

“[W]arrants for computer searches must affirmatively limit the search to

evidence of specific federal crimes or specific types of material.” Burke, 633 F.3d at

992 (quoting Riccardi, 405 F.3d at 862). A warrant should enable “the searcher to

reasonably ascertain and identify the things authorized to be seized.” Cooper, 654

F.3d at 1126 (quoting Riccardi, 405 F.3d at 862).

Whether the container approach or the Tenth Circuit approach meets

constitutional requirements is certainly an open question and one that should be

addressed by this Court.

D. The Delay Before Searching the Computers Was Unreasonable.

The State waited two and one-half years to search the computers after they

were taken from Petitioner’s home. Petitioner did not consent to the seizure of the

computers. This delay supports the conclusion the State did not have probable

cause to seize the computers, but it is also constitutionally unreasonable. A seizure

lawful at its inception can nevertheless violate the Fourth Amendment because its

manner of execution unreasonably infringes possessory interests protected by the

Fourth Amendment. United States v. Mitchell, 565 F. 3d1347, 1350 (11th Cir. 2009)

(per curiam).

There is no case in which such a lengthy delay has been approved. In

. In United States v. Christie, 717 F.3d 1156 (10th Cir. 2013) then Judge Gorsuch

recognized the particularity requirement to computer searches are still relatively new as are the

protocols for searching a computer.

Mitchell, law enforcement agents seized the hard drive of the defendant's computer

acting on probable cause that the computer contained images of child pornography.

Twenty-one days after the initial seizure of the hard drive, the agent applied for

and received a warrant to search the computer. The defendant challenged the delay

in obtaining the search warrant, but the challenge to the search warrant was

rejected by the court. The Eleventh Circuit reversed, holding the delay

unreasonable.

The Fourth Circuit recently followed Mitchell in United States v. Pratt, 915

F.3d 266 (4th Cir. 2019). In Pratt, there was a 31-day delay in obtaining a warrant

for the defendant's cell phone because the defendant had committed crimes in both

North and South Carolina, and the government had to decide the location where to

seek a warrant. Id. at 272. The Fourth Circuit held that the agents did not act

diligently in that case because it “shouldn't have taken a month” for the agents to

decide where to seek a warrant, particularly given the government's concession that

it was “unlikely that the forum for a warrant would affect a later prosecution.” Id.

Further, in Pratt, the government was not waiting for a state prosecutor to act.

Where delays have been permitted, they have been for a matter of days, not

months. See United States v. Laist , 702 F.3d 608, 616–17 (11th Cir. 2012) (25-day

delay in getting a search warrant for a seized computer upheld. The delay was

reasonable because the agents worked diligently on the affidavit; they were

responsible for investigations in ten counties; and the defendant consented to the

seizure and had been allowed to keep certain files, diminishing his privacy

interest.); United States v. Burgard , 675 F.3d 1029, 1033–34 (7th Cir. 2012)

(Seventh Circuit accepted a six-day delay for an officer to seek a warrant for a

cellphone where he needed to consult with prosecutors and with the officer who

seized the phone, but the Seventh Circuit criticized even that delay); United States

v. Vallimont, 378 F. App'x 972, 975–76 (11th Cir. 2010) (45-day delay in getting a

search warrant for a seized computer upheld. The delay was reasonable because the

investigator was diverted to other cases, the county’s resources were overwhelmed,

and the defendant diminished his privacy interest by giving another person access

to the computer.)

It is clear that the decision of the Montana Supreme Court conflicts with

Mitchell and Pratt. As the dissenting opinion noted, the original warrant to seize

the computer in the first instance was invalid in the first instance and the majority

essentially engaged in a bootstrap.

Review of the conflict in decisions is warranted.

CONCLUSION

This case presents issues of exceptional importance in which the courts of

this nation have issued conflicting decisions. It is important that this conflict be

resolved promptly so that the judiciary and law enforcement have clear guidance.

Certiorari should be granted.

Dated: August 20, 2019

/s/ Eric Nelson

APPENDIX

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.